Contest a Will or Estate in South Australia
Losing a loved one is always difficult. Unfortunately, disputes over wills and estates can
add further emotional and financial stress for families.
If you believe that a will is invalid, or that you have not been adequately provided for
from a deceased person’s estate, you may have the legal right to challenge it.
In South Australia, the law allows certain individuals to challenge the validity of a will
or make a claim for further provision from the estate.
This guide explains how contesting a will works, who may be eligible to bring a claim, and
the legal process involved.
What Does It Mean to Contest a Will or Estate?
Contesting a will or estate refers to taking legal action in relation to the distribution
of a deceased person’s assets.
In South Australia there are generally two types of estate disputes:
1. Challenging the validity of a will
This occurs where someone believes the will itself is legally invalid. Common reasons
include:
- lack of testamentary capacity
- undue influence
- fraud or forgery
- improper execution of the will
2. Making a family provision claim
A family provision claim accepts that the will is valid but argues that the deceased person
did not make adequate provision for an eligible person.
The court has the power to order that additional provision be made from the estate if it
considers this appropriate.
In South Australia, these matters are governed primarily by the
Succession Act 2023 (SA).
Common Grounds for Contesting a Will
Invalid Will
A will may be challenged if it does not meet the legal requirements for validity, such as
proper signing or witnessing.
Lack of Testamentary Capacity
A person must understand the nature and effect of making a will. If they did not have the
mental capacity to do so, the will may be invalid.
Undue Influence
If someone pressured, manipulated, or coerced the deceased person into changing their will,
the will may be challenged.
Fraud
A will may be contested if there is evidence the deceased person was misled or deceived
when creating or altering the will.
Family Provision Claim
If an eligible person believes they were not adequately provided for, they may apply to the
court for additional provision from the estate.
Who Can Contest a Will in South Australia?
Not everyone can contest a will. Under the Succession Act 2023, only
certain eligible persons may bring a family provision claim.
These may include:
- a spouse or domestic partner
- a former spouse or former domestic partner in some circumstances
- children of the deceased
- stepchildren
- persons who were financially dependent on the deceased
- persons in a close personal relationship with the deceased in certain situations
Eligibility depends on the circumstances of the relationship and the level of dependence.
An experienced estate litigation lawyer can advise whether you are eligible to bring a
claim.
The Legal Process for Contesting a Will
Seek Legal Advice
The first step is to speak with an experienced estate litigation lawyer who can assess the
strength of your claim and advise on your legal options.
Investigation and Evidence
Your lawyer will gather relevant evidence to support the claim. This may include:
- financial records
- medical evidence
- witness statements
- documentation relating to the will
Negotiation or Mediation
Many estate disputes are resolved through negotiation or mediation before going to court.
This can reduce costs and avoid lengthy litigation.
Court Proceedings
If the matter cannot be resolved through negotiation, an application may be made to the
Supreme Court of South Australia.
The court will consider the evidence and determine whether:
- the will is valid
- the will should be altered
- further provision should be made from the estate
Final Orders
If the court decides that a claimant has not been adequately provided for, it may order
that additional provision be made from the estate.
Time Limits for Contesting a Will
Strict time limits apply.
In South Australia, a family provision claim must generally be made
within six months of the grant of probate or letters of administration.
Although extensions may be granted in limited circumstances, it is important to obtain
legal advice as soon as possible.
Failing to act within the required time may prevent a claim from being brought.
Common Issues in Estate Disputes
Inadequate Provision
A spouse, child, or dependant may feel they have been unfairly excluded or left without
sufficient financial support.
Disputes Between Family Members
Conflicts may arise between beneficiaries regarding how the estate should be distributed.
Questions About Capacity
Concerns may arise about whether the deceased person had the mental capacity to make or change their will.
Influence from Others
In some cases, vulnerable individuals may have been pressured by others when preparing
their will.
Each estate dispute is unique, and legal advice is essential to understand the available
options.
Why Choose Wright Street Lawyers
When contesting a will or estate, experienced legal guidance can make a significant
difference.
At Wright Street Lawyers, we provide practical and compassionate advice to individuals
involved in estate disputes.
Experienced Estate Litigation Lawyers
Our lawyers have extensive experience in will disputes and family provision claims in South
Australia.
Personalised Advice
We take the time to understand your circumstances and provide advice tailored to your
situation.
Strategic Representation
We represent clients in negotiations, mediation, and court proceedings with a focus on
achieving the best possible outcome.
Compassionate Support
We understand that estate disputes often occur during emotionally difficult times. Our team
provides clear guidance and support throughout the process.
Transparent Cost Discussions
We discuss legal costs upfront and explore possible funding arrangements where appropriate.
Frequently Asked Questions
Can I contest a will if I am not a family member?
Possibly. Some people who were financially dependent on the deceased or in a close
personal relationship with them may be eligible to make a claim. Legal advice should be
sought to determine eligibility.
How long do I have to contest a will?
In most cases, a claim must be filed within six months from the grant of probate or
letters of administration.
Can I contest a will if I received a small gift?
Yes. Receiving a small provision does not prevent you from making a claim if you
believe it is inadequate.
How much does it cost to contest a will?
Costs depend on the complexity of the matter and whether the dispute resolves through
negotiation or proceeds to court. Your lawyer can explain the expected costs and
possible funding options.
Can estate disputes be resolved without going to court?
Yes. Many disputes are resolved through negotiation or mediation, which can reduce
costs and avoid lengthy court proceedings.
Get Client-Focused Legal Help
If you believe a will is invalid or that you have not been adequately provided for from an
estate, it is important to seek legal advice promptly.
Contact Wright Street Lawyers for a confidential consultation.
This article is part of our comprehensive Wills & Estates resource.
