Disputes can arise around the distribution of an estate following a death. Current or former spouses or partners, children or dependents of the deceased may believe that they were not properly provided for under the Will, or that the Will does not reflect the deceased’s intentions. The Will may also breach some other agreement made whilst the deceased was still alive.
In other circumstances a Will may be found to be unenforceable due to the circumstances in which it was signed. For example, a Will may have been signed without the person making the Will fully understanding the Will’s implications, or it may have been signed under some kind of duress or under deception. It may also be argued that the Will was not intended by the deceased to be his or her last Will and Testament because a more recent Will exists and or the Will presented to the Court had been revoked.
Other disputes may also arise over the conduct of the executor.
In any of these circumstances the Courts may find that the Will is invalid or inadequate and order that it be set aside and the Estate be redistributed.
Whether you are an executor trying to meet your obligations, someone who believes they were not properly provided for under the terms of the Will, or you are someone concerned about the Will being followed, our contested Wills and Estates team have the knowledge and experience to help you.
The law does require that certain people be fairly and properly provided for in a Will. Only an eligible claimant, as identified under the Inheritance (Family Provision) Act 1972, can contest a Will.
An application can be made by:
An application to contest a Will under the Inheritance (Family Provision) Act 1972 (SA) or the Wills Act 1936 (SA) must be made within 6 months of the Grant of Probate. However, at its discretion the Court can extend this period on application.
To successfully make a claim the claimant must be eligible (as outlined above) and satisfy the Court that they have not received adequate provision in the deceased’s Will. Each case will be determined by its facts. A Court will, in determining the matter, consider the following:
The above list is not exhaustive and the Court is able to consider any other matters it considers relevant to the determination of the claim.
Scammell & Co.’s contested Wills and Estates team can assist with other situations including:
Contact Scammell & Co.’s experienced contested Wills and Estates team for a confidential initial discussion and advice on the best way forward.
In many cases, if you are a spouse, child or grandchild of a deceased person or if you are in a relationship of dependency upon the deceased person, you may well have a claim for a provision from the estate of the deceased person, even if you have been left out of that deceased person’s Will.
In most cases, the estate would also pay all of your legal costs incurred in challenging a Will.
Even if you have been included in the Will in a small way, you may have a claim for an increased amount.
If it is decided to contest the Will, it is usual for the estate to pay the legal costs of each contesting party. This means the estate loses, not you. This is not automatic but is usual.
The law specifies six months, from the date Probate is granted. However, it is sometimes possible to get an extension of time.
