When a Will does not tell the whole story
A Will is a legal document and courts take it seriously. But a Will is not always the final word on how an estate is divided. South Australian law recognises that some people have a legitimate claim on an estate regardless of what the Will says, or even in the absence of a Will entirely.
Whether you are someone who believes you have been inadequately provided for, or an executor managing an estate that faces a claim, the process is the same: it is dealt with by the Supreme Court of South Australia under the Succession Act 2023, and it requires careful, experienced legal guidance from the outset.
Two ways a Will can be contested
Challenging the validity of the Will
A Will can be challenged on the basis that it is not legally valid. Common grounds include a lack of testamentary capacity at the time the Will was made, undue influence or pressure from another person, and ambiguity or uncertainty in the Will’s terms. Medical evidence is often central to capacity challenges, and the Supreme Court will examine the deceased’s age, health, and circumstances at the time of signing.
If you have concerns about the validity of a Will, act before a grant of Probate is made. A caveat lodged at the Probate Registry prevents any grant from issuing while the challenge is investigated and resolved.
Do not wait. Once a grant of Probate has been made and the estate distributed, challenging the validity of the Will becomes significantly more difficult. Contact our team immediately if you have concerns.
Claiming greater provision from the estate
A separate and more common process allows certain people to claim that they have not been adequately provided for from the estate, even where the Will itself is valid. This is an inheritance claim under the Succession Act 2023, and it is the right to ask the Supreme Court to make provision from the estate for your proper maintenance, education, or advancement in life.
Who can make an inheritance claim
The Act specifies who has standing to bring a claim. Eligibility alone does not guarantee success: the court considers the full circumstances of each case.
- A spouse or domestic partner of the deceased
- A former spouse or former domestic partner
- A child or grandchild of the deceased
- A child of a spouse or domestic partner of the deceased
- A parent or sibling of the deceased
- Even step children may now have a claim
What the court considers
An inheritance claim is not a simple test of whether you were left out. The Supreme Court exercises a broad discretion and considers a range of factors specific to each case.
The need of the applicant
Need is assessed in a relative sense and is not limited to immediate financial hardship. The court looks at future contingencies including health, earning capacity, and likely expenses. The size of the estate is also relevant: what constitutes adequate provision in a large estate may be measured differently in a modest one.
The class of the applicant
A spouse or young child will generally be treated differently to an adult child or a sibling. There is no single rule, and adult children can and do succeed in claims, sometimes alongside other adult children or a surviving spouse.
The conduct of the applicant
A person who has acted so poorly toward the deceased that they do not deserve a benefit may find their claim reduced or denied. However, long-term estrangement is not automatically a barrier to success, particularly where the estrangement was caused or maintained by the deceased’s own actions.
The size and nature of the estate
The court will consider what provision is appropriate having regard to the full estate, including any assets that pass outside the Will such as jointly held property. Superannuation that bypasses the estate through a Binding Death Benefit Nomination is generally not available to inheritance claimants.
Time Limits
A claim under the Succession Act 2023 must be commenced in court and served on the executor within six months of the date of the grant of Probate or Letters of Administration.
At the end of that six-month period, your claim maybe limited to whatever assets remain in the estate. If the executor has distributed the estate before your claim is served, there may be nothing left to claim against. Early action is essential.
The court has power to extend the time limit in some circumstances, but an extension is not guaranteed and should not be relied upon. If you believe you may have a claim, speak to our team as soon as possible.
Legal costs in inheritance claims
Costs in inheritance claims are handled differently to ordinary civil litigation. There is no automatic rule that the estate pays everyone’s legal costs. The court has a broad discretion and will consider the size of the estate, the merits of the claim, whether reasonable offers were made and rejected, and the conduct of the parties throughout the proceedings.
Before committing to a claim, you should obtain an honest assessment of your prospects, the likely costs involved, and the realistic range of outcomes. Our team provides that assessment clearly and without pressure.
Most inheritance claims resolve through negotiation before reaching trial. Early and well-advised engagement is the most effective way to achieve a fair outcome without the full cost and delay of court proceedings.
For executors facing a claim
If you are an executor and have received notice of an inheritance claim, you have obligations that begin immediately. You must not distribute the estate while a valid claim is on foot, and your conduct throughout the process will be scrutinised by the court.
Our team advises executors on how to respond to a claim, how to protect themselves personally, and how to manage the estate through what can be a difficult and extended process.
Speak to our team first
Inheritance claims are among the most personally difficult matters we handle. Grief, family conflict, and financial pressure often arrive together. Our team understands that, and we will give you a clear, honest picture of where you stand before you commit to any course of action.
Book a conversation with our team. No obligation. No pressure. Just a clear picture of where you stand and what needs to change.