Contesting a will

If you have been left out of a will, or feel that you haven’t received a fair share, you’re not alone. The unfair distribution of a will is a common and emotionally exhausting matter for thousands of Australians every year.  Perhaps your parent remarried and left the bulk of their estate to a new partner, or maybe your sibling has received a unreasonable share of the family assets. Whatever the reason, you may well have a sound legal position to start contesting a will. 

Inheritance claims are heard in the Supreme Court. The court has Jurisdiction when the deceased was domiciled in South Australia or had real estate or personal assets in the State. Persons can make a claim whether the deceased left a will or not. The time limit for bringing a claim is 6 months from the date of Probate or where there is no will from the date of granting Letters of Administration ( under certain circumstances the Court will extend the time. )

PERSONS ENTITLED TO MAKE A CLAIM

Section 6 of the Intestate (Family Provisions) Act 1972 gives rights to certain persons to make a claim against an estate of a deceased person. The following persons are entitled to make a claim:

  • The spouse of the deceased person
  • A person who has been divorced from the deceased person
  • The domestic partner of the deceased person ( a domestic partner is defined as a person who has lived with the deceased in a close personal relationship for a minimum of three years prior to death.)
  • A child of the deceased person
  • A child of a spouse or domestic partner of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death
  • A child of the child of the deceased person
  • A parent of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime.
  • A brother or sister of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime.

The Matters the Supreme Court takes into account

The Court deals with claims in a two stage process as follows:

  1. The Court determines whether the claimant was left without adequate provision for his or her proper maintenance, education and advancement in life.
  2. If the Court determines the claimant has not been adequately or properly provided for the Court in its discretion decides what  provision should be made out of the Estate.

The two questions involve similar considerations

The Court puts itself into the shoes of the deceased at the date of his death and asks the following questions:

  1. Would a wise and just person have made the provision in the will that the deceased made?
  2. In all the  circumstances does the will (or the rules of intestacy where there is no will) make adequate provision for the claimant having regard to all the circumstances ?

In determining the adequacy of the provision and what provision should have been made the Court looks at: the financial position of the claimant, the claimant’s needs and capacity to meet them, the competing claims of other beneficiaries including moral claims, the size of the estate, the standard of living the claimant enjoyed with the deceased during the deceased’s life , in the case of a child the need for education or assistance in some occupation, the totality of the relationship of the claimant with the deceased as against others who claim against the deceased estate.

If the Court determines adequate or proper provision has not been made the Court modifies the Will of the deceased to provide for adequate and proper disposition

Costs

The current practice is that provided the claimant did not act unreasonably in making a claim costs will normally be awarded out of the estate.

First consultation free. Call (08) 8331 2907 or email jcummins@senet.com.au