Can You Challenge a Will in South Australia?

Has a family member of yours passed away leaving a will which was not quite what you expected?

People often do funny things when it comes to distribution of their assets. The will may not have been updated for a long time – perhaps decades – and circumstances may have changed in the meantime. The person may not have been thinking clearly when they made their will. Or they could simply have made a poor decision resulting in an unfair result for family members.

A fundamental concept of our law is the freedom of disposition – the freedom to dispose of our assets as we wish upon our death. However, the law recognises that people can exercise that right in ways that have unfortunate and inconvenient results for family members left behind. Fortunately, the contents of the will are not the end of the story. In South Australia, there is legislation designed to ensure that the family of a deceased person receives adequate provision out of his or her estate – no matter what the terms of the will.

The Inheritance (Family Provision) Act 1972 (SA) allows certain people to apply to the Supreme Court for what is effectively a variation of the will.

Who can make a claim? You can claim if you are:

  1. The spouse of the deceased person;
  2. A person who has been divorced from the deceased person;
  3. The domestic partner of the deceased person;
  4. A child of the deceased person;
  5. A step-child (including the child of a domestic partner of the deceased) in certain circumstances;
  6. A grandchild of the deceased person;
  7. A parent of the deceased person in certain circumstances;
  8. A sibling of the deceased person in certain circumstances.

If the matter proceeds to a hearing (which is rare – an “out of Court” resolution is usually possible), the Court will decide whether you are left without adequate provision for your proper maintenance, education or advancement in life. So it is necessary to show more than simple unfairness in the terms of the will – you need to show that you have not been properly provided for.

In making its decision, the Court will consider your need for further provision out of the estate as well as other factors like the size of the estate and the nature of your relationship with the deceased during his or her life.

Legal costs in matters like this are generally paid from the assets of the estate.

This is a complex area. There are tight time limits for making an application. You should seek legal advice immediately if you think you may have a claim. We are happy to meet with you for a free, no-obligation meeting to explore your options. Generally we will be prepared to act on a “No Win, No Fee” basis in these kinds of matters. Please feel free to call Dewar Legal on (08) 8311 3964 to arrange a consultation. You can also contact us by using out contact form.