CONTESTING A WILL

There are multiple factors to take into consideration before attempting to contest a Will. Firstly, it must be determined whether you, the applicant, is eligible for contesting under the Inheritance (Family Provision) Act 1972 (SA). Section 6 of this act outlines those who are eligible to contest a Will as;

• The spouse of the deceased person
• A person who has been divorced from the divorced person
• The domestic partner of the deceased person
• 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 they 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 they cared for, or contributed to the maintenance of, the deceased person during his lifetime.

If the applicant falls under one of these classifications, they must then fulfill the time requirement. Under Section 8 of the Inheritance (Family Provision) Act 1972, an application shall not be heard by the Court, unless it is made within six months from the date of the grant of probate of the will, or letters of administration of the estate, of the deceased person. Although under subsection 3 an extension of time may be granted at the discretion of the Courts, adequate reasoning will be required for this extension application, and therefore, applying within the prescribed six months is preferable.

Following establishment of being an eligible applicant, it must then be proven to the Courts, that your granted proprietary interests were unfairly disproportionate. In determining whether your claim is valid, the court will take into consideration, multiple factors, including, but not limited to, the following;

• The financial circumstances in assets, liabilities, health and earning capacity of the applicant.
• The financial circumstances in assets, liabilities, health and earning capacity of other eligible persons under the Will.
• The value of the deceased’s estate
• Any historical context, including personal and financial relationship with the deceased

Although this is the most common way to contest a Will, there are other avenues available to the Applicant. Alternatively, one may contest a Will which acts to question it’s validity. For example, if the deceased, at the time of making the Will was incapable of making informed decisions for themselves due to lacking testamentary capacity. Additionally, avenues such as determining that the Will came about as a result of forgery, fraud or by force will found a contest.

Given this, if you require assistance in contesting a Will or even defending one from an unfair contest, Straits Lawyers are here to help you.

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