Contesting Wills – Inadequate Provision

In this part of the series on contesting wills, this article examines the option of applying under the Inheritance (Family Provision) Act 1972 (SA) for inadequate provision. As a general principle of law, testators (the person who makes the will) can give their estate to whomsoever in whatever portion they may wish. As one can imagine, this can and does result in unfair distributions of estates. Sometimes, family members or dependants are left out and suffer as inadequate provision is made for them.

To help those who might find themselves such situations, the State Government legislated the Inheritance (Family Provision) Act 1972 (SA) into existence. Through this Act, those who are left out of a Will may apply for a re-allocation order. This Act also operates to provide for those left out of intestate estates. Regarding eligibility, the Act specifies classes of people who may apply for inadequate provision. They are:

• a spouse or divorced spouse of the deceased;
• the domestic partner (it must be a registered domestic relationship) of the deceased;
• the child of the deceased;
• the child of a spouse or domestic partner of the deceased who was maintained by the deceased immediately before their death;
• a grandchild of the deceased; and
• a parent or sibling of the deceased who can demonstrate to the court they cared for or maintained the deceased during their lifetime.

Re-allocation orders on the basis of inadequate provision must be applied for within 6 months of the grant of probate or letters of administration. The court may grant exceptions where the deceased’s estate has not been fully administered. It is important to note that applying for inadequate provision does not guarantee the re-allocation order will be made. The court will consider the provisions made by the testator ensure that those who should, are provided for. If those who need to be provided for have been provided, the court is unlikely to re-allocate, even if beneficiaries are unhappy with the division.

In applying for inadequate provision, it is always important to seek legal advice to understand its possible effects. If you would like to discuss this further, simply email us at info@straitslawyers.com or call at 08 8410 9069 to arrange an appointment.

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.