Q&A Session: Wills & Estates #4

How can I contest a Will? In South Australia you can contest a will pursuant to the provisions of the Inheritance (Family Provision) Act 1972 (“the Act”) in circumstances where the deceased was living in SA at the time of death and died leaving assets in SA. A claim must be made within six (6) months of a Grant of Probate or Administration unless the time for making an application is extended by the Court. For a person to make a claim on a deceased’s estate, the person must satisfy the criteria of eligible persons as set out in section 6 of the Act. That is:

• The spouse of a deceased person
• A person who has been divorced from the deceased person
• The domestic partner of the deceased person
• A child of the deceased person
• Children of spouses or domestic partners of the deceased person in certain circumstances
• Grandchildren of the deceased person
• Parents and siblings of the deceased person in certain circumstances
• You must then provide evidence that the deceased failed to make adequate provision in their will for your maintenance, education and advancement in life as set out in section 7 of the Act.
• You will need to provide notice to the executor of the will of your intention to make a claim. This should be done as soon as probate has been granted and in any event, before the assets of the estate have been distributed.

How can I challenge a Will? A will can also be challenged on grounds of the deceased lacking testamentary capacity at the time of making his or her will, that is, they were not of sound mind and also on grounds of allegations of undue influence by another person, or coercion, fraud or forgery. If you need legal advice, please contact us on 08 8368 7000.