Contesting a Valid Will

The expressions “contesting a Will”, “Will contest” or “challenging a Will” are commonly used when you are claiming that the Will is unfair. Insofar as the person who died had an obligation to leave something to you and that they have failed to leave anything, or not enough, to you.

To contest a Will, you will need to make a claim in the Court against the deceased person’s estate for a share of the estate. This is commonly called a Family Provision Claim.

What you are in effect claiming is that the deceased failed to make adequate financial provision for you, and you must therefore establish that you have a financial need to justify the claim.

Who Can Make a Family Provision Claim?

If a Will is valid, but you believe you have not been given your fair share, or you expected to benefit from an estate but you have been left out, then you may be entitled to make a family provision claim.

In South Australia, the legislation governing Family Provision Act is the Inheritance (Family Provision) Act 1972. A claim should be made within six months of the date on which probate is granted. In some (not all) circumstances, the Court may allow an extension of time.

Only certain people are allowed to make a family provision claim. For example:

• Spouse
• Ex-spouse
• Domestic partner
• Biological/adopted child
• Biological grandchild
• Child of spouse or domestic partner maintained by the deceased
• Biological parent who cared for or maintained the deceased
• Biological siblings who cared for or maintained the deceased

It is important to note that not all assets of the deceased can be contested in this way. An example would be the way in which the person’s superannuation has been dealt with cannot be challenged under this mechanism unless the superannuation was distributed to the deceased’s Estate.

If you would like to contest a Will or find out more about your rights and options, simply send us an email at info@straitslawyers.com or give us a call on 8410 9069 to arrange an appointment for an online interview.

Alternatively, if you would like your Will to be drafted, Straits Lawyers are now offering online Will services. To access these services, simply click on the link – https://straits-lawyers.square.site/product/online-will-/1?cs=true

Please note that this article does not constitute legal advice and Straits Lawyers will not be legally responsible for any actions you take based on this article.