Guidance on eligibility, legal grounds, and the process of challenging a Will in South Australia
The decision to contest a Will is never an easy one. It often comes at a time of emotional upheaval and the process can strain family relationships.
Still, you may feel that challenging a Will is necessary to ensure fairness and protect your rights or those of others.
In South Australia, the process of contesting a Will is governed by strict legal principles, and not everyone can make a claim. There are specific criteria that must be met under the Succession Act 2023, and navigating this area of law requires a careful, strategic approach.
With over two decades of experience representing clients in estate and inheritance disputes, I understand how complex and personal these matters can be.
If you believe you have been unfairly left out of a Will, or if you’re concerned about the validity of a loved one’s estate planning, it’s important to act promptly. There are time limits involved, and early legal advice can make a significant difference.
In this article, I’ll outline who can contest a Will, the grounds for doing so, and what the process involves.
Speak With a Will Dispute Lawyer Today
Contesting a Will can be stressful. If you’ve been left out or doubt its validity, our Adelaide estate dispute lawyers are here to help with clarity and care.
How to Contest a Will South Australia
In South Australia, a Will can be contested by eligible people who believe they were unfairly left out or that the Will is invalid. A contest can be based on a family provision claim or on grounds like lack of testamentary capacity or undue influence.
Claims must usually be filed within six months of probate in the Supreme Court of South Australia.
Who Can Contest a Will in South Australia?
Under the Inheritance (Family Provision) Act 1972 (SA), only certain people are eligible to contest a Will on the basis that it fails to provide adequate provision for their maintenance, education, or advancement in life.
These claims can be made by:
- Spouse or domestic partner. The deceased’s current spouse or domestic partner.
- Former spouse or domestic partner. If there was no valid financial agreement under the Family Law Act 1975 (Cth).
- Child of the deceased. The deceased’s natural or adopted child.
- Step-child. Under specific circumstances outlined in the Act.
- Grandchild. If their parent (the deceased’s child) died before the deceased.
- Parents and siblings. If they can demonstrate that they cared for, or contributed to the maintenance of, the deceased during their lifetime.
- Dependent individuals. A person who was wholly or partly dependent on the deceased and a member of the deceased’s household.
Note: The Act also allows for claims by other individuals if they can demonstrate a close personal relationship with the deceased.
Legal Grounds for Contesting a Will
If you are eligible to challenge a Will you have six months from the date Probate is granted to make a claim. There are two main ways to go about it in South Australia:
1. Family Provision Claim
This is the most common form of Will contest. It argues that the deceased failed to make adequate provision for your (the applicant’s) proper maintenance, education, or advancement in life.
When assessing such claims, the court considers a few different factors:
- The applicant’s financial needs and personal circumstances
- The size and nature of the estate
- The nature of the relationship between the applicant and the deceased
- Contributions made by the applicant to the estate or welfare of the deceased
- Any other relevant factor, for example, promises made by the deceased
You have to understand that the aim of the court is not to equalise inheritances among relatives. The goal is to ensure that adequate provision has been made for those who are deserving and dependent.
2. Contesting the Validity of the Will
Less commonly, a person may challenge the validity of a Will itself on grounds such as:
- Lack of testamentary capacity, meaning the deceased did not understand what they were doing when making the Will.
- Undue influence, if the deceased was pressured or coerced by another party.
- Fraud or forgery, that is to say that the Will was not actually made by the deceased.
- Improper execution, meaning the Will was not signed or witnessed in accordance with the Succession Act 2023.
These claims are serious and you must be able to support them with evidence, such as medical records, witness testimony, or expert opinions.
The Process of Contesting a Will
Contesting a Will is not a decision to be taken lightly. The process can be emotionally taxing and legally complex.
Here’s what it typically involves.
Step 1: Seek Legal Advice
The first step is to consult with an experienced Wills and estates lawyer. At Randle & Taylor, we offer an initial no-obligation consultation to discuss your eligibility and prospects of success. We Will be honest with you about likely outcomes and what the process Will look like.
Step 2: Notify the Executor
If you decide to proceed, your lawyer Will notify the executor of the estate that you intend to make a claim. In an ideal world, this opens the door to early negotiation or mediation, avoiding the need for formal litigation.
Step 3: File a Claim
If the matter cannot be resolved informally, you must file a claim in the Supreme Court of South Australia. For family provision claims, this must be done within six months of the grant of probate or letters of administration, so you’ll need to act quite quickly.
Step 4: Court Process
The court process itself involves several stages, including preliminary conferences, disclosure of documents, and (potentially) mediation. If the matter cannot be resolved in the first stages, it proceeds to trial where a judge Will make a decision.
How We Can Help
The law in South Australia recognises that not all testamentary decisions are fair or just, and provides a legal avenue for rectifying such situations. Still, contesting a Will is a deeply personal and often challenging process.
We always approach Will disputes with compassion and pragmatism. Our goal is to achieve a fair resolution that upholds your legal entitlements, ideally without the need for drawn out litigation.
If you believe you have been unfairly left out of a Will or that a loved one’s final wishes may not have been properly recognised, I encourage you to get in touch with us as early as possible.
FAQs
What does it mean to contest a will in South Australia?
Contesting a will means legally challenging the distribution of a deceased person’s estate in the Supreme Court of South Australia because you believe the will is invalid or fails to provide adequate provision for you under the Succession Act 2023 and the Inheritance (Family Provision) Act 1972 (SA).
Who is eligible to contest a will in South Australia?
Eligible applicants include a spouse or domestic partner, former spouse, natural or adopted children, step‑children (in specific circumstances), grandchildren, parents and siblings who provided care, and dependent individuals who were part of the deceased’s household.
What is a family provision claim?
A family provision claim argues that the deceased failed to make adequate financial provision for your proper maintenance, education, or advancement in life, and seeks adjustment of the estate under South Australian law.
What are the time limits to contest a will in South Australia?
You generally must file a claim within six months of the grant of probate or letters of administration in the Supreme Court of South Australia, unless the court grants an extension for special circumstances.
What legal grounds can be used to contest the validity of a will?
A will can be challenged as invalid if the deceased lacked testamentary capacity, was subject to undue influence, the document was forged or fraudulent, or the will was not executed according to legal requirements under the Succession Act 2023.
What evidence is needed to contest a will?
Evidence may include medical records showing lack of capacity, witness statements about undue influence, expert opinions, proof of improper signing or witnessing, and documentation showing contributions to the deceased’s care or finances.
What steps are involved in contesting a will in South Australia?
Typical steps include:
- Seeking legal advice from a wills and estates lawyer.
- Notifying the executor of your intention to make a claim.
- Filing the claim in the Supreme Court.
- Participating in conferences, mediation and, if necessary, a court hearing.
How much does it cost to contest a will in South Australia?
Costs vary by case complexity and lawyer fees. Most lawyers provide an initial consultation and may offer fixed fee components for specific stages. Court filing fees and expert reports can also apply.
Can a will be changed after probate is granted?
Yes—if a successful claim is made under family provision laws or if the court finds the will invalid, the Supreme Court can adjust or replace the terms of distribution even after probate.
Do I need a lawyer to contest a will in South Australia?
While not legally required, it is strongly recommended because of the legal complexity, strict time limits, evidentiary requirements, and procedural rules in the Supreme Court.
Why Choose Randle & Taylor for Will Disputes?
If you’re thinking about contesting a Will, it’s important to have experienced guidance on your side. Our Adelaide estate dispute lawyers can explain your options, assess your eligibility, and help you work towards a fair outcome.
