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When a loved one dies, the burden can be enormous.

There’s the funeral to arrange, the estate to finalise, and on top of everything, you’re grieving your loss.

It’s a tough time, and things can get worse if your loved one’s Will doesn’t provide for you or your children. It may not make any provision at all, or you’re set to inherit less than expected.

You may be able to ask a court to decide whether it’s valid. Or you may be able to ask a court to award you a greater share of the estate.

You may be thinking about contesting the Will or estate.

For example, if you believe there’s a problem with the Will, you may be able to ask a court to decide whether it’s valid. Or, if the Will is valid, you may be able to ask a court to award you a greater share of the estate if there are good reasons to support your claim.

For estate and Will disputes, we can help you.

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Who can challenge a Will or estate?

Anyone can challenge the validity of a Will, so long as they have an interest in the earlier Will of the deceased (the testator).

For example, in her Will, your Aunt left you $100,000. She later changed it so you would inherit nothing under the new Will. If you believe that for some reason the later Will is invalid, you can challenge the Will in court because you had an interest in the earlier Will.

On the other hand, if the Will is valid, you may be able to make a claim on the testator’s estate.

South Australian law says that you must have had a specified relationship with the testator to be able to make a claim:

  • Spouses or former spouses
  • Domestic partners or former domestic partners
  • Children
  • Dependent step-children (in some circumstances)
  • Grandchildren
  • Parents, in some circumstances
  • Brothers and sisters, in some circumstances

Whether you can challenge a Will or estate is not always clear. Getting legal advice is the best and safest option if you’re concerned about a Will or estate.

Need advice? Just ask us a question

Challenging a Will

If you’re planning on disputing a Will, you need to establish that it’s invalid.

There are a range of possible reasons why it may be invalid, including:

  • The testator lacked capacity to make the Will
  • The testator didn’t understand or know what was in the Will
  • The testator was coerced into signing the Will
  • There was fraud or forgery
  • The testator didn’t properly sign the Will
  • The Will wasn’t properly witnessed

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If you believe the Will is invalid, you’ll need to see us for urgent legal advice.

If a challenge is appropriate, we will need to apply to the Supreme Court as soon as possible, to either stop probate from being granted or to have the grant of probate revoked (cancelled).

The Court may then say that an earlier Will should stand, or it may say that the testator was intestate, meaning that they died without a Will. For more information about intestacy, see Estate Administration.

How to challenge a deceased estate

If you believe that you should have received a greater share of a testator’s estate, you can make a claim after probate has been granted.

This is also known as an inheritance family provision claim, or an inheritance claim.

There are strict time limits that apply. Your application must be made within six months of the grant of probate.

South Australian laws say that if you’re making an inheritance claim, you must be able to establish that the testator was in some way responsible to provide for your education, maintenance or advancement in life. This will mean different things to different people.

The sooner you contact us for advice, the better. It may be possible to negotiate with the beneficiaries before making a claim, or if that doesn’t work out, we can make a claim on your behalf in the Supreme Court of South Australia.

We’ll be able to advise you about grounds for a claim once we know more about your circumstances, including:

  • Your relationship with the testator
  • The size of the estate
  • Your financial circumstances
  • Whether you have any children or other loved ones who are financially dependent on you
  • The state of your health
  • The people named in the Will and their relationship with the testator
  • The people named in the Will and their financial circumstances

Frequently asked questions

In some cases, the deceased estate pays the legal costs. But bear in mind that if legal costs come out of the estate, there will ultimately be less for you.

In South Australia, it’s becoming more common for parties to pay their own legal costs for inheritance claims. This removes some of the protection from legal costs that claimants previously enjoyed, but it also deters people who may not have a genuine claim.

You’ll need to carefully consider making a challenge. For example, how likely is it that you’ll be successful? Can you negotiate a settlement with the beneficiaries?

We recommend legal advice from experienced Will dispute lawyers. Our team can help.

Domestic partnerships are like de facto relationships.

In estate claims, two people are domestic partners if:

  • They have lived together on a genuine domestic basis (as life partners) for at least three years; or
  • For a shorter time if they have a child together; or
  • For a shorter time if they have registered their relationship

The South Australian government allows unmarried couples to register their relationships as a way of ensuring certain legal rights without having to marry. For more information, see the South Australian Government’s information page on registered relationships.

Once probate has been granted, the Will becomes a public document.

You can ask to see the Will at the Supreme Court of South Australia’s Probate Registry, or we can get a copy of the Will for you.

If you want to see the Will before the grant of probate, we can try to locate it for you. It may take longer if the person used a Will kit to make their own Will.

If there’s no Will, or if the Will is invalid, different rules and processes apply.

The person is considered intestate (meaning that they have died without a Will) and there will be a separate process to find someone to divide up the estate. For more information, see Estate administration.

South Australian laws set out strict time limits for inheritance claims. It’s usually difficult to get an extension of time to make a claim, but it’s always worth checking.

If the estate has already been distributed, you will not be granted an extension of time to make a claim.

If you’re wondering whether you can still make a claim, even after the time limit has passed, contact us as soon as possible for advice.

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