Who can contest a will in South Australia (and how to do it).

Thinking about contesting a will? In South Australia, legislation enables someone who’s been either left out of a will or hasn’t received adequate maintenance to make a claim against the deceased’s estate.

When it comes to contested wills and probates, lawyers will always tell you it’s important to get legal advice early on. This is because there are restrictions on who can contest a will in South Australia, as well as strict time limitations in place – sometimes urgent action is required.

Each state has its own legislation, so it’s important to get legal advice on the laws that apply. Here’s a brief overview of contesting a will in South Australia.

Who can contest a will in South Australia?

In SA, you’re only entitled to contest a will if you fit 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 (an ex-spouse can contest a will);
• You were the domestic partner of the deceased person (yes, a de facto partner can contest a will);
• 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 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 their lifetime).

Unless you fit into one of the above categories, you will not have standing to contest a will and, consequently, you’ll be statute barred from making a claim against the estate, as you’re not someone who can contest a will in the South Australian legal system.

How long do you have to contest a will in Australia?

There’s a strict time limitation that must be adhered to under SA’s Inheritance (Family Provision Act 1972). An application to contest a will must be made to the court and served on the executor within six months of a Grant of Probate or Grant of Letters of Administration being issued.

The strict time limitation can sometimes be extended but it’s at the discretion of the court and an extension shouldn’t be relied upon. If you miss the applicable time limitation for challenging a will after a Probate has been issued, you may be stopped from taking any further action by the court, particularly in circumstances where the estate has already been fully distributed.

Can a beneficiary contest a will?

A beneficiary can contest a will in SA whether they’re named in the will or not, provided they can establish that the deceased didn’t make adequate provision for them and they’re eligible to make a claim (as mentioned above).

If you’re wondering how to stop someone contesting a will in Australia, we recommend you seek legal advice specific to your circumstances, as this can be quite complicated, and again, may require urgent action.

Contesting a will’s validity

There are a number of circumstances where a will may be deemed invalid. A will might be deemed invalid if the testator (that’s the person who’s will it is) is making the will in circumstances where they were mentally incapacitated, or subject to undue influence by family members or other persons, or if the will is fraudulent and so on.

As you can probably understand, challenging the validity of a will is not something to do lightly; it’s important to get legal advice early on about contesting a will and, if appropriate, lodge a Caveat with the Probate office to stop any Grant being issued on an invalid will.

How to contest a will in SA

If you believe you have a legal standing for contesting a will based on the circumstances discussed above, the next step is to seek professional legal advice. Making a claim against the estate of deceased family members or others can be a complicated, stressful and drawn out process, so working with contested will lawyers who are experienced in these areas, and who take the time to understand your reasoning for doing so is really important.

Johnston Withers Lawyers has been helping South Australian families, individuals, businesses and communities for over 75 years. Sometimes life is complicated, and that’s when experience matters.

If you’d like advice or direction from a lawyer about contesting a will in South Australia, please contact Emma Godson on (08) 8231 1110, or send us a message.

This article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.