Contesting a Will in South Australia

Introduction

The words contesting a will refer to a family provision claim, not challenging a Will or a Will dispute. The law relating to contesting a Will in each State of Australia is different.

The following is a summary of fundamental information that any interested person will find helpful if contemplating a family provision claim in South Australia:


1. Claiming in SA.

A claim can only be made in SA if either :

  • (a) there is real estate property owned by the deceased situated in SA and/or
  • (b) the deceased was domiciled (living permanently) in SA at the date of his or her death and owned personal property anywhere.

2. Obtaining a copy of the Will.

The following persons are entitled to inspect a Will of the deceased:

  • a) any person names or referred to in the Will;
  • b) any person named or referred to in an earlier will as a beneficiary;
  • c) the surviving spouse, de-facto or issue;
  • d) the parent or guardian of the deceased;
  • e) any person entitled to a share if the deceased has died intestate;
  • f) any parent or guardian of a minor referred to in the Will or who would be entitled to a share if the deceased died intestate;
  • g) any person with management of the deceased’s personal estate immediately before death;

3. When there is no will in SA.

The legal term when the deceased died without a Will is that the decease died “Intestate”.

In SA, the list of beneficiaries when there is no Will are as follows:

  • 1. If survived by spouse or domestic partner and no children then the spouse or domestic partner is to receive the entire estate.
  • 2. If survived by spouse or domestic partner, and children:-
    • – If the total estate is less than $10,000.00 then the entire estate passes to the spouse or domestic partner;
    • – If the total estate is more than $10,000.00 then the spouse or domestic partner are entitled to:
      • – The personal property;
      • – $10,000.00 and half of the remaining balance (e.g. $50,000.00 in estate, the spouse or domestic partner would get $10,000.00 plus $20,000.00);
      • – Where the family home is in the deceased’s name, the spouse or domestic partner has the right to purchase the home;
    • – Children are entitled to the balance of the estate and if more than one child then in equal shares. If the child is under 18 their share must be given to the Public Trustee to manage under trust.
  • 3. If survived by children and no spouse or domestic partner then the children receive the estate in equal shares. If a child has died then their child/ren receives their parent’s share (if more than one, then in equal shares).
  • 4. If survived by no spouse or domestic partner, or children then the relatives to receive the estate in the following order:
    • a) Parents in equal shares or to surviving parent;
    • b) Siblings in equal shares (if a sibling has died then their child would receive their share);
    • c) Nephews and nieces in equal shares or their children;
    • d) Grandparents in equal shares or to surviving grandparent;
    • e) Uncles and aunts in equal shares or if one has died then to their children in equal shares; and
    • f) First cousins in equal shares.
  • 5. If survived by no relatives then the entire estate passes to The Crown.

4. The time limit to contest a Will in SA.

Pursuant to the Inheritance (Family Provision) Act 1972 (SA) s 8(1) the time limit in which to make a claim is within 6 months of the date of the grant.

5. Eligibility to contest a will in SA.

To receive an order for provision or further provision you must be an eligible person/applicant.

Pursuant to Section 6 of the Inheritance (Family Provision) Act 1972 (SA) the following are “eligible persons” who may apply to the Court for a family provision order in respect of the estate of a deceased person.

  • a) the wife or husband of the deceased at the time of death;
  • b) person who is divorced from the deceased at the time of death;
    • i) a domestic partner (requires that the parties lived together in a close personal relationship for at least three years or produced a child);
  • c) child of the deceased;
  • d) step-child of the deceased (must be maintained by the deceased immediately before death, extends to child of de-facto partner);
  • e) grandchild of the deceased (no additional factors);
  • f) parent of the deceased (where parent cared for or contributed to maintenance of deceased);
  • g) sibling of the deceased (where sibling cared for or contributed to maintenance of deceased).

6. The evidence the Court takes into consideration in SA.

The Court takes the following evidence into consideration:

  • a) any family or other relationship between the applicant and the deceased
  • b) any obligation or responsibilities of the deceased
  • c) the nature and extent of the deceased’s estate and liabilities;
  • d) the financial resources and financial needs of the applicant any other applicant or beneficiary;
  • e) any physical, intellectual or mental disability of the applicant or any other applicant or beneficiary
  • f) any contribution by the applicant to the acquisition, conservation and improvement of the estate or the welfare of the deceased
  • g) any provision made for the applicant by the deceased during the deceased’s lifetime
  • h) whether the applicant was being maintained by the deceased before the deceased’s death
  • i) the character and conduct of the applicant before and after the deceased’s date of death;

7. When you don’t live in SA.

Where you personally live has no bearing on your claim. The important factor is that the deceased lived in South Australia and the deceased owned assets in South Australia. A claimant can very easily make a claim from another State without leaving his or her front door. This is a common and frequent situation. What you don’t want is a lawyer acting for you without a thorough knowledge of the law in the State where you are claiming.

8. When you believe the Will is not valid in SA.

You may be able to challenge the validity of a Will if you believe the Will is a forgery or if the person lacked the mental capacity to make a Will. You can also challenge a Will if you believe there was undue influence placed upon the Will maker in the will making process or if there was fraud involved. To research the Intestacy rules for South Australia please refer to question 3.

9. When where and how do you start in SA.

When. Because estate funds can sometimes be sold, transferred or spent, if you are going to make a claim you should do so without delay. Otherwise you may have no assets or funds to claim upon.

Where. You may call any of our offices for assistance. We are also available after normal business hours.

How. We will talk to you about your case and depending upon your wishes immediately attempt to settle your claim before any court action is considered. If the persons named in the Will refuse to settle we will commence court proceeding for you.

For a free case assessment call 1800 90 20 90

10. The legal fees in SA.

Legal costs in family provision cases are at the discretion of the judge however if an order for provision is made for a claimant the claimant’s costs will be paid out of the estate.

If however the claimant’s case is rejected and no order is made in his or her favour he or she may be ordered to pay the costs of the executor defending the proceedings. For that reason alone we recommended you should only seek advice from a specialist lawyer in this field of law.

There is a lot more detail to discuss with you about costs and the variety of costs agreements available to you in these cases including our guaranteed “NO Win No Fees” policy.

For a free case assessment call 1800 90 20 90



11. Would you please provide a summary of some of the relevant sections of the Inheritance Act 1972 (SA) that might assist anyone contesting a will under the family provision “Rules” for that State?

What is the time limit for commencing proceedings?

Six months from the date of the Grant of Probate or Administration.

Who is entitled to claim benefit under this act?

The following persons are, in respect of the estate of a deceased person, entitled to claim the benefit of this Act:

  • (a) the spouse of the deceased person;
  • (b) a person who has been divorced from the deceased person;
  • (c) the domestic partner of the deceased person;
  • (d) a child of the deceased person;
  • (e) 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;
  • (f) a child of the child of the deceased person;
  • (g) 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;
  • (h) a child of the child of the deceased person;
  • (i) 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;
  • (j) 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.

Does the court have powers to make orders out of the estate of a deceased person. If yes, under what circumstances?

Yes… Where

  • (a) a person has died domiciled in the State or owning real or personal property in the State; and
  • (b) by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life,

the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.

How is notice under subsection 1 to be served?

Notice of an application under subsection (1) of this section shall be served by the applicant on the administrator of the estate of the deceased person, and on such other persons as the Court may direct.

Can the court refuse to make an order?

Yes…The Court may refuse to make an order in favour of any person on the ground that his character or conduct is such as, in the opinion of the Court, to disentitle him to the benefit of this Act, or for any other reason that the Court thinks sufficient.

Does the court have the power to impose conditions, restrictions and limitations on any order?

Yes…The Court may, in making any order under this Act, impose such conditions, restrictions and limitations as it thinks fit.

What powers are given to the court if it thinks that the matter would be more appropriately determined by proceedings outside the state?

If, in respect of an application under subsection (1) of this section, it appears to the Court that the matter would be more appropriately determined by proceedings outside the State, the Court may (without limiting the powers conferred on it by the preceding provisions of this section) refuse to make an order under this section or adjourn the hearing of the application for such period as the Court thinks fit.

Can the court order that a lump sum or periodic payment be made?

Yes…In making the order the Court may, if it thinks fit, order that the provision shall consist of a lump sum or periodic or other payments or a lump sum and periodic or other payments.

What is the time limit on an application under this Act?

Subject to this section, an application shall not be heard by the Court at the instance of a person claiming the benefit of this Act unless the application is made within six months from the date of the grant in this State of probate of the will, or letters of administration of the estate, of the deceased person.

Can the six month time limit be extended?

Yes…The Court may, after hearing such of the persons affected as the Court thinks necessary, extend the time for making an application for the benefit of this Act.

Under what conditions can the time limit be extended?

An extension of time granted pursuant to this section may be granted

  • (a) upon such conditions as the Court thinks fit; and
  • (b) whether or not the time for making an application pursuant to subsection (1) of this section has expired.

Does an extension of time need to be made before the final distribution of the estate?

Yes…An application for extension of time pursuant to this section shall be made before the final distribution of the estate.

Can any distribution take place before the making of such application for extension?

Any distribution of any part of the estate made before the application for extension of time shall not be disturbed by reason of that application or any order made thereon.

When is an application deemed to be made?

Any distribution of any part of the estate made before the application for extension of time shall not be disturbed by reason of that application or any order made thereon.

Can the court join parties to an application?

Where an application has been made for the benefit of this Act, the Court may, if satisfied that it is just and expedient to do so, permit at any time prior to the final determination of the proceedings, the joinder of further claimants as parties to the application.

What must an order under this act contain?

Every order that provision be made for the maintenance, education or advancement of any person out of the estate of a deceased person must, inter alia

  • (a) specify the amount and nature of the provision thereby made; and
  • (b) specify the part or parts of the estate of the deceased person out of which that provision shall be raised or paid, and prescribe the manner of raising and paying that provision; and
  • (c) state the conditions, restrictions or limitations imposed by the Court.

Who bears the provisions of an order made by the court?

Subject to subsection (3) of this section and unless the Court otherwise orders, the burden of any such provision shall, as between the persons beneficially entitled to the estate of the deceased person, be borne by those persons in proportion to the values of their respective interests in the estate.

If any property is left by the deceased is it to be separately valued?

No…Where the deceased person died leaving a will under which two or more persons are successively entitled to any property, the successive interests shall not, unless the Court otherwise orders, be separately valued for the purposes of subsection (2) of this section, but the proportion of the provision to be borne by that property shall be raised or charged against the corpus thereof.

Where does a certified copy of any order have to be made?

The Court shall, in every case in which an order is made, direct that a certified copy of the order be made upon the probate of the will, or letters of administration of the estate, of the deceased person, and for that purpose may require the production of the probate or letters of administration.

Can any order made by the court be rescinded or altered? If so does notice have to be given?

Yes and Yes…The Court may at any time, and from time to time, on the application of the administrator or of any person beneficially entitled to or interested in any part of the estate of the deceased person, rescind or alter any order.

Notice of an application under subsection (5) of this section must be served upon all persons entitled to any benefit under the order in respect of which the application is made.

How do the provisions of any order affect the estate?

Upon any order being made under this Act, the portion of the estate affected by the order shall be held subject to the provisions of the order.

How are costs for an order determined by the court?

The Court may make such order as to the costs of any proceeding under this Act as it considers just.

How are the provisions of any order to operate and take effect?

Every provision made by an order shall, subject to this Act, operate and take effect as if it had been made

  • (a) if the deceased person died leaving a will, by a codicil to that will executed immediately before his death; or
  • (b) if the deceased person died intestate, by a will executed immediately before his death.

What further powers does the Court have in relation to lump sum and/or periodic payments?

The Court shall have power at any time to fix a periodic payment, or lump sum, or a periodic payment and a lump sum, to be paid by any person, to represent, or in commutation of, the proportion of the sum ordered to be paid that falls upon the portion of the estate to which he is entitled, and to exonerate that portion of the estate from further liability.

The Court may give incidental directions as to the payment or investment of the lump sum or the manner in which the periodic payments are to be made or secured.

Does the court have the power to discharge, vary or suspend orders in relation to lump sum or periodic payments? If yes, under what circumstances?

The Court shall have power at any time to fix a periodic payment, or lump sum, or a periodic payment and a lump sum, to be paid by any person, to represent, or in commutation of, the proportion of the sum ordered to be paid that falls upon the portion of the estate to which he is entitled, and to exonerate that portion of the estate from further liability.

The Court may give incidental directions as to the payment or investment of the lump sum or the manner in which the periodic payments are to be made or secured.

Does any mortgage, charge or assignment have force, validity or effect in regards to an order made by the court under this section?

No. No mortgage, charge, or assignment of any kind whatsoever of or over the provision made by an order under this Act shall, unless made with the prior permission of the Court, be of any force, validity, or effect.

Under what circumstances will an administrator of an estate be liable under this Act?

No liability. An administrator of the estate of a deceased person who has lawfully distributed the estate or any part thereof shall not be liable to account for that estate or that part thereof, as the case may be, to any person claiming the benefit of this Act, unless the administrator had notice of the claim at the time of the distribution.

What are the requirements of ‘notice’ under this section?

For the purposes of this section, notice of the claim

  • (a) shall be in writing signed by the claimant or his solicitor; and
  • (b) shall lapse and be incapable of being renewed unless, before the expiration of three months after the administrator receives notice of the claim a copy of an application by the claimant for the benefit of this Act has been served on him.

Is the court limited in making orders under this Act after any part of the estate has been distributed?

No…Subsection (1) of this section shall not prevent the Court from ordering that any provision under this Act be made out of the estate, or any part thereof, after it has been distributed.

How is the duty payable on the estate of the deceased to be determined?

For the purpose of apportioning the duty payable on the estate of the deceased person, any provision made under this Act by an order of the Court shall be deemed to be a bequest made by the deceased person.

  • (a) if he died leaving a will, by a codicil to that will executed immediately before his death; or
  • (b) if he died intestate, by a will executed immediately before his death.

Under what circumstances will a due adjustment of the duty payable on an estate be made?

Notwithstanding the provisions of any other Act, where an order is discharged, rescinded, altered or suspended, a due adjustment of the duty payable on the estate of the deceased person shall be made.

What effect does an order under the Administration and Probate Act 1919 have in regards to the Public Trustee under this Act?

Where an order has been made under the Administration and Probate Act 1919 as amended, authorising the Public Trustee to administer the estate of a deceased person who has died leaving a will, then, for the purposes of this Act

  • (a) the Public Trustee shall be deemed to be the administrator of the estate of the deceased person; and
  • (b) the order shall be deemed to be the grant of probate of the will, or letters of administration with the will annexed of the estate, of the deceased person.

What powers does the judge(s) have in regards to regulating this Act?

The judges of the Court may, subject to and in accordance with the Supreme Court Act 1935 as amended, make such rules as may be necessary or expedient for regulating the practice and procedure of the Court to be adopted for the purposes of this Act.

Until rules are made in pursuance of this section the general practice and procedure of the Court shall, so far as applicable and not inconsistent with this Act, apply to all proceedings of the Court under this Act.

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