Contesting a Will when you have been left nothing or not enough
Legislation in South Australia (SA) known as the Inheritance (Family Provision) Act 1972 enables someone that has been either left out of a Will or has not received enough to make a claim against the deceased’s estate.
Who can contest a Will in South Australia (SA)?
In SA, you are only entitled to make a claim against a deceased’s estate if you fill into one of the following categories:
- You were the spouse (husband or wife) of the deceased person;
- You are a person who was married and now divorced from the deceased person;
- You were the domestic partner of the deceased person (includes same sex couples);
- You were a child of a spouse or domestic partner of the deceased person (provided you were being maintained wholly or partly or legally entitled to be made maintained wholly or partly by the deceased person immediately prior to his or her death);
- You were the child of the deceased person;
- You were a grandchild of the deceased person;
- You were a parent of the deceased person (provided you can satisfy the Court that you cared for or contributed to the maintenance of the deceased person during his or her lifetime);
- You were a brother or sister of the deceased person (provided you can satisfy the court that you cared for and contributed to the maintenance of the deceased person during his or her lifetime.
Unless you fit into one of the above categories you will not have standing to being a claim and consequently, you will be statute barred from making a claim against the estate.
Each state has its own Legislation so it is important to get legal advice as to which state applies.
When can a Will be contested?
In South Australia, there is a strict time limitation which must be adhered to under the Inheritance (Family Provision Act 1972). An application must be made to the court and served on the executor within 6 months of a Grant of Probate or Grant of Letters of Administration being issued.
The strict time limitation can be extended but it is at the discretion of the court and should not be relied upon. If you miss the applicable time limitation you may be stopped from taking any further action by the court, particularly in circumstances where the estate has been fully distributed.
In what circumstances can you contest a Will?
A beneficiary named in the Will or someone who is not named in the Will may make a claim against the estate if they can establish that the deceased did not make adequate provision for them (and provided they have standing to make a claim as mentioned above).
Challenging the validity of a Will
There are a number of circumstances where a Will may be deemed invalid. It is important to get legal advice early on and, if appropriate, lodge Caveat with the Probate office to stop any Grant being issued on an invalid Will.
Examples of why a Will might be invalid include the testator making the Will in circumstances where they were mentally incapacitated or subject to undue influence by family members or other persons or by reason of the Will being fraudulent and so on.
Matters to consider
In the area of contested estates it is important to get legal advice early on as there are strict time limitations in place and sometime urgent action is required.
Johnston Withers Lawyers: Experienced Lawyers in Contesting Wills & Estates
Johnston Withers Lawyers have experience in providing advice on contesting wills and estates. If you’d like advice or direction from a lawyer, please contact Emma Wilkinson on (08) 8231 1110, or get in touch online.