Johnston Withers and our Contested Wills & Estates lawyers have considerable experience acting for both Plaintiffs and Defendants in matters relating to contested estates. 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.

We recognise the complexity of these matters and will always act with integrity to help ensure the maintenance of family relationships after the dispute has been resolved.

Who can make a claim?

In South Australia, there are only certain categories of people that can claim against a deceased’s estate. Section 6 of the Inheritance (Family Provision Act 1972) provides for a list of eligible claimants. These include:

  • 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 (i.e. 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 his or her 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 he or she cared for or contributed to the maintenance of the deceased person during his or her life time;
  • 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.

Time limitations for contesting a Will

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.

How can I make a Claim?

In order to make a successful claim, you must firstly be one of the eligible complainants. If you do not fit in the category of persons eligible to make a claim, you will have no standing to bring any application.

Once you have established that you are an eligible claimant, you will then need to satisfy the courts that you have not received adequate provision under the deceased’s Will (or under an intestacy if there is no will).

This can include you not 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:

  • The adequacy of any provisions 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)

Are there other ways to contest a Will?

In addition to making a claim under the Inheritance Family Provision Act stating that you have been left without adequate provision, there are other ways for disputing a Will.

A Claim might be focussed on the validity of the Will instead of the gifts under the Will. For example, the Will might be deemed invalid because the deceased at the time or making the Will was incapable of making decisions for themselves. For example:

  • they might have lacked testamentary capacity;
  • the Will may have come about as a result of forgery or fraud or by force.

In those circumstances it may be appropriate to set the Will aside as being an invalid document, rather than simply not liking what you receive under the will.

The effect of setting a Will aside may result in an early Will being reinstated or may result in the deceased person dying intestate (i.e. without a Will). In the case of dying intestate, the applicable legislation will direct how the estate is to be distributed and who is to be the legal personal representative.

Who pays the legal costs?

The question of who pays the costs of litigation is slightly complex.

Unless an executor has acted improperly, their legal fees will be borne by the estate.

Generally speaking if your claim is successful then the estate may well pay your legal costs.

There are circumstances however where you might have to pay your own legal costs (whether you are 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.

It is therefore vitally important to get proper advise during the course of any litigation as to the prospects of success and risks associated with the cost of proceeding.

At Johnston Withers we will agree in certain circumstances to deferring payment of our fees until the conclusion of litigation.

Frequently asked questions

Is there a time limit for me to contest a Will?

In South Australia there is a strict time limitation for making an application within 6 months of the date of Probate is granted. However, it is possible to get an extension of time but it is purely at the discretion of the court. The application must also be served on the executor within 6 months of the grant of Probate.

How long can contesting a Will take?

Contesting a will can take months or even years if it requires the Court to intervene 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. 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.

Am I able to challenge my step parents Will?

Under the Inheritance Family Provision Act, a step child will only have standing to bring a claim if they were maintain wholly or partly by the deceased or were legally entitled to be maintained wholly or partly by the deceased immediately prior to his or her death.

Can I bring a claim if my parents were not married?

A biological child of the deceased person is eligible to bring a claim under theInheritance Family Provision Act whether that child is born in the marriage or not. If however the child is adopted, they will no longer be eligible to make a claim against their biological parent’s estate.

I am adopted, am I able to make a claim?

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.

There is no will. Can I challenge the estate of the deceased?

For an intestate estate (ie where 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 are an eligible claimant and can establish the provision left is insufficient then you can bring a claim against the estate for further provision.