If you’re looking for wills and probate lawyers in Adelaide, Salisbury or regional SA, our contested wills lawyers have considerable experience acting for both Applicants and Respondents in matters relating to disputing wills.
We can act where the validity of the Will is in dispute, or where further provision is sought under the Inheritance (Family Provision) Act despite the Will being otherwise valid.
Our team of expert lawyers for contesting a will can also advise on how to reduce the risk of someone disputing your will after your death, so you can be confident your assets will be transferred as you wish.
People need lawyers for contesting a will more often than you may realise.
Whether you need advice on how to challenge or contest a will, or you’re seeking assistance in relation to a disputed will that you’re a beneficiary of, our team of leading probate and contested wills lawyers are here to provide expert, confidential advice.
It is with immense gratitude that I recommend Caitlin Walkington. Caitlin was the only one out of seven solicitors that I contacted that was able and/or willing to help me and advised on the brief with great compassion. I accepted her advice and after the first element of the situation unfolded, pursued the next element feeling secure in her projections. Caitlin is very professionally steered us through a very unpleasant situation with care, empathy, excellent knowledge, great understanding at a personal level, and emotional intelligence and maturity beyond her years. She listened to my concerns, and respectfully gave me options and guidance, factoring in my personal wellbeing, to a fantastic outcome. Subsequently we were delighted to give her our other personal business with confidence and peace of mind of her knowledge and attitude. We will be calling on Caitlin again should we ever require legal services in the future.
Caitlin was amazing and helped my husband and I through a very tough time in our families life. She was caring, understanding and explained everything as many times as we needed. We were able to achieve the best outcome for us and we cannot thank Caitlin and the team at Johnston Withers for all their help in taking the stress out of a very stressful period. If we find ourselves in need of legal assistance again, Caitlin will be our first call.
My experience with Caitlin at Johnston Withers was faultless. Caitlin guided me throughout the entire process and respected my situation whilst being extremely personable. I was able to step back knowing I could trust Caitlin was handling everything. The level of professionalism and manner at which my case was handled means I would certainly be back if at anytime I needed assistance.
The validity of a will can be challenged on the basis that a person didn’t have the mental capacity to sign the will, or that someone applied undue pressure to the person when the will was created, or if there is fraud or suspicious circumstances surrounding the making of the will.If successful on any of these bases, the disputed will be invalid and the previous will (if any) will stand. If the deceased didn’t have an earlier will, then the deceased would have died intestate (without a will).
Alternatively, the distribution of a will or the entitlement under the Administration and Probate Act 1919 (SA) can be contested under the Inheritance (Family Provision) Act 1972 (SA).
Anyone can challenge the validity of a will on the basis of capacity, undue influence, fraud or suspicious circumstances. Usually this is done by the beneficiaries of the preceding will who stand to benefit, using specialist lawyers for contesting a will.
Thinking of contesting the distribution of a will or the distribution under the Interstate rules? In South Australia, only certain categories of people can claim against a deceased’s estate. Section 6 of the Inheritance (Family Provision Act 1972) provides for a list of eligible claimants.
The spouse of the deceased person;
A person who has been divorced from the deceased person;
The domestic partner of the deceased person (including same sex domestic partners);
A child of the deceased person (including an adopted child);
A child of a spouse or domestic partner of the deceased (for example, a step child), provided that the child was maintained wholly or partly or was legally entitled to be maintained wholly partly by the deceased person immediately before their death;
A child of the child of the deceased person (i.e. a grandchild);
A parent of the deceased person who satisfies the court that they cared for or contributed to the maintenance of the deceased person during their lifetime;
A brother or sister of the deceased person who satisfies the court that he or she cared for or contributed to the maintenance of the deceased person during his or her lifetime.
If you don’t fit in the category of eligible persons who can contest a will (see list above), you’ll have no standing to bring any claim.
Once you’ve established that you’re an eligible claimant, you’ll need to satisfy the courts that you’ve not received adequate provision under the deceased’s will (or under an intestacy if there is no will). This can include you being left either nothing or too little in the will.
The court will take into a number of matters including but not limited to the following when it comes to contested wills and estates:
The adequacy of any provisions that the deceased made for your maintenance, education or advancement in life;
The circumstances of other eligible persons or named beneficiaries under the will;
The nature of the relationship between you and the deceased person;
Your personal and financial circumstances including your earning capacity, health, assets and liabilities;
The size of the deceased’s estate;
Any provision the deceased made for you during their lifetime (for example gifting you amounts of money or real estate and so on).
Johnston Withers’ team of will contest lawyers have a proud history in helping bring and defend claims relating to challenging wills. Recent examples include:
Obtaining a summary judgement in the Supreme Court on behalf of a beneficiary in a contested estate, as well as in a misleading and deceptive conduct claim brought by a sibling who was excluded from the will.
Acting for a daughter who was excluded from her father's will, and obtained a sizable payout from an insurer for the negligence of her prior solicitor who failed to issue a claim under the Inheritance (Family Provision) Act within the statutory time limit.
Successfully resolving, without the need for litigation, a beneficiary's interest in a contested estate, which included the ownership and control of a large family business with certain assets outside the estate and subject to a constructive trust claim.
Receiving a declaration of a domestic partner in the South Australian Civil and Administrative Tribunal on behalf of our client, the surviving spouse, which entitled her to her deceased partner's superannuation entitlement;
Acting for a beneficiary in a contested estate, which involved issuing Supreme Court proceedings under the Hague Convention against beneficiaries located in an overseas jurisdiction.
In SA, there is a strict time limitation for contested wills and estates, 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.
Disputing wills, or resolving contested wills and estates, can take months or even years if the Court intervenes in the dispute. An application to the Court cannot be lodged until Probate or Letters of Administration are granted in the estate. Depending on the complexity of the estate, it can take anywhere between 2-12 months to obtain a grant, even with the help of specialist lawyers for contesting a will.
The court process (again depending on the complexity) can be drawn out, and if the matter proceeds to trial it could be several months before the matter is ready to be set for a trial.
The question of who pays to contest a will is slightly complex. Unless an executor has acted improperly, their legal fees are covered by the estate.
Generally speaking, if your claim is successful, the estate may well pay your legal costs, but there are circumstances where you might have to pay your own legal costs (regardless of whether you’re successful or unsuccessful).
If you are unsuccessful, you might also be ordered to pay the other side’s legal costs in addition to your own, so it’s vitally important to get proper advice from an inheritance lawyer regarding the prospects of success and risks associated with the cost of proceeding.
In certain circumstances, our probate and contested will lawyers will agree to defer payment of our fees until the conclusion of litigation.
Contesting the will of a step parent can be complicated. Under the Inheritance Family Provision Act, a step child only has a standing to bring a claim if they were maintained wholly or partly by the deceased, or were legally entitled to be maintained wholly or partly by the deceased immediately prior to their death.
A biological child of the deceased person is eligible to bring a claim under the Inheritance Family Provision Act regardless of whether that child is born in the marriage or not.
Yes, if they’ve been included in the will. However, if a child is adopted, they will no longer be eligible to make a claim against their biological parent’s estate. Our expert lawyers for contesting a will can explain why.
Under Section 9 of the Adoption Act 1988 (SA), an adopted child of the deceased person is treated as a natural born child of the deceased person. An adopted child is therefore not eligible to claim against their biological parent but can claim against the parent that adopted them using a will contest lawyer.
For an intestate estate (i.e. when the deceased died without a will) the legislation in force at the time will direct how the estate is to be divided amongst beneficiaries. Provided you’re an eligible claimant and can establish the provision left is insufficient, then you can bring a claim against the estate for further provision using specialist will contest lawyers.
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