Contesting A Will in South Australia
Contesting A Will in SA
If you are a close relative, partner or friend of a deceased in whose will you were not provided for, you may become involved in contesting a will SA.
“If you have not been provided for in a deceased’s will, you may be entitled to claim part of their estate provided you are an eligible person and are able to substantiate your entitlement.”
In a disputed will case, only an eligible person can make a claim for a deceased estate. There are a number of situations where a person may be eligible to make a claim for a deceased estate. Identifying and applying those circumstances and situation to a particular case require understanding of the relevant laws and the processes through which the entire case can be initiated and concluded. Therefore, if you have not been provided for in a will and believe that you may be entitled to the deceased’s estate.
Contesting A Will SA – Who can challenge a will?
People who fit within the categories listed below may be able to contest, or challenge, a will and make a claim in deceased estate:
- A partner of the deceased at the time of the deceased’s death. This includes a husband, wife or a de facto partner. Partners of the same sex are included in this category.
- A child of the deceased including children born outside marriage or de facto relationships.
- A grandchild of the deceased who at any point of time was dependent on the deceased.
- A member of the deceased’s household who was dependent on the deceased.
- A former wife, husband or partner of the deceased.
- Any person who, at the time of the deceased’s death, was living in a close personal relationship with the deceased.
Therefore, contesting a will SA is not limited to close relatives or partners of the deceased. Usually, the eligibility of a husband, wife, de facto or child to make a claim is not disputed while other persons making claims must meet certain statutory criteria before they may proceed.
Grounds for Challenging a Will SA
A person may be able to contest a will by challenging its validity or challenging the adequacy of portion, or amount, provided to them in the contested will.
You may be able to contest the Validity of a Will if you believe that one of the following circumstances apply:
- The deceased did not have the required legal capacity to make a will.
- The deceased was subjected to undue influence in making the will which, as a result, rendered the will provisions contrary to the deceased wishes in normal circumstances.
- The will was revoked by the deceased before his or her death.
- The deceased made a later will.
- The deceased was not aware of, or did not approve of the content of the will.
- The will was not signed by the deceased.
- There was an error or interference in execution of the will.
There are a number of factors the court considers when dealing with will dispute cases. If you initiate will dispute proceedings, expect the court to consider the following issues:
- The nature and duration of your relationship with the deceased.
- Whether you have made any contributions the deceased estate.
- The size and value of the deceased estate.
- Your financial circumstances and needs.
- The financial circumstances and needs of other beneficiaries in the estate.
- Any promises or undertakings made to you by the deceased while he or she was alive.
How to Contest A Will SA?
The first step in contesting a will SA and making a claim for a deceased estate is to obtain legal advice in relation to your particular case.
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What is the Time Limit of Contesting a Will SA
In South Australia, contesting a will SA has a time limit of 6 months from the date of the grant of probate to the Executor to apply family provision from the deceased’s estate.
In some defined conditions, an application can be granted to the Court for an extension of time to make an application. As per section 8 of the Inheritance (Family Provision), Act 1972 states that the Court may extend the time of application for provision under the Act (after reviewing the reasons for the delay).
Depending on the reasons for your delay, the Court will examine closely in determining whether or not to extend the time limit. The Court will decide after reviewing the reasons behind the delay, the extent of the delay, and any biases caused to other parties because of the delay (DELISIO & ORS v SANTORO No. SCCIV-00-790  SASC 65).
In case if other beneficiaries have got their distribution before your claim is heard, the court will not disturb the distribution to make the acquaintance of your claim. Furthermore, the Court may also take account of whether a claim has been made by another party within the time constraint to allow you to be joined a party to that proceeding (Section 8 (7) Inheritance Family Provision Act 1972).
Make sure that you do not make any delay in granting your application as the Court may not contemplate the reasons which you provide adequate to extend the time for making an application.
If you are aware that the official proof of the will has been granted then consulting with a lawyer promptly is essential. It will assist you to take appropriate steps regarding your claim.
To get details and assistance about contesting a will SA, connect with us at-(08) 8366 6584.
Who Pays the Cost Associated with Contesting a Will SA?
First of all, there is no cost to call us or come into our office for an initial consultation.
We would be delighted to meet with you based on no cost and no obligation. The legal costs such as the executor’s costs and a claimant’s costs related to contesting a Will SA are generally paid by the estate. It is also a fact that the more costs an estate has to pay the less of that will be at the hand for distribution to beneficiaries.
We are however there at every step with you throughout the process and will provide the best possible result through our expertise with contesting a will SA.
Will Disputes and Challenges
There are various reasons to challenge the validity of a will. This includes the legal incapability of will-maker, unwarranted influence by any family member, incorrect execution, or invalid amendments to the Will or any other fraudulent happenings.
- When a son or daughter takes an elderly parent along with them to a law firm to make a will and get a greater benefit in it.
- In some cases when the parent doesn’t know proper English or doesn’t know English at all or the parent is suffering from dementia.
- When the will-maker has not got the opportunity to clearly understand the terms of the will or don’t get its contents, in such cases the will may be considered invalid, and contesting a will SA becomes difficult.
How to Get a Copy of the Will in SA?
There are no specific terms to obtain a copy of a will in South Australia.
You can approach the executor of the will to request a copy of the will, however, the Executor is not legally bound to provide you with a copy. The executor informs the beneficiaries that they have been named as beneficiaries in the deceased’s will, but only after obtaining the grant of probate.
A copy of the deceased’s will can be obtained by the executor after the Supreme Court has granted probate. It can take some months to obtain a grant of probate after the deceased’s passing.
If someone is not much aware of the terms and processes, it is better to contact a lawyer to assist you in contesting a will SA.