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Contested Wills and Contested Deceased Estates – Adelaide

Wills & Estate Planning
Powers of Attorney
Advance Care Directives
Administration of
Deceased Estates

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to be his or her last Will and Testament because a more recent Will exists and or the Will presented to the Court had been revoked.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.

Contact us today to arrange for a confidential, FREE initial consultation.

Who can make a claim?

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:

  • A spouse or former spouse of the deceased person;
  • A registered domestic partner (including same sex partner) of the deceased person;
  • A child (including an adopted child) of the deceased person;
  • A person who was, at any particular time, dependent (wholly or partially) on the deceased person;
  • A parent of the deceased person who satisfies the Court that he or she cared for, or contributed to the maintenance of, the deceased person during his or her lifetime;
  • A sibling of the deceased person who satisfies the Court that he or she cared for, or contributed to the maintenance of, the deceased person during his or her lifetime.

What time limits apply for contesting a Will in South Australia?

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.

Making a claim

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 adequacy of the provisions for the claimant’s maintenance, education and advancement of life;
  • The circumstances of other eligible persons or beneficiaries under the Will;
  • The nature and duration of the claimant’s relationship with the deceased;
  • The claimant’s circumstances including their financial resources, earning capacity and health;
  • The size of the estate;
  • Any contributions the claimant made both financial and non-financial to the deceased in their lifetime; and
  • Any provisions the deceased made for the claimant during their lifetime.

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:

  • Challenging the validity of a Will
  • Defending a Will that is being contested or challenged
  • Was the Will properly signed and witnessed?
  • Is the wording of the Will confusing?
  • Was the Will-maker of sound mind at the time they made or changed their Will?
  • Was there any forgery or fraud involved?
  • Are you the Executor (or Beneficiary) of a Will being challenged and need to know your rights and obligations?
  • Is the Executor failing in their duties by not properly distributing the Estate?
  • Is Probate of the Will required?
  • Did the deceased die without leaving a Will?

Contact Scammell & Co.’s experienced contested wills and estates team for a confidential initial discussion and advice on the best way forward.

 

FAQs

Click on the questions below to reveal the answer:

What happens if I am left out of the Will?

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.

What is my risk in taking action to contest a Will … what costs might I incur?

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.

Is there a time limit for me to contest a Will?

The law specifies six months, from the date Probate is granted. However, it is sometimes possible to get an extension of time.

Free legal advice.

If you have some questions, want some advice or want to get the process underway, contact Scammell & Co. to arrange a meeting. In many cases (not all) the first 30 minutes of your first meeting is free. This can give time to outline your matter and for us to give you preliminary advice.
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