Estate Disputes

From 1 January 2025, the following people are entitled to see your will after you die:

• a person named in the will 
• a person named in an earlier will as a beneficiary 
• your surviving spouse, partner, child or stepchild 
• any former spouse or partner 
• your parents or guardians 
• anyone who would be entitled to a share of your estate had you died without a will 
• a parent or guardian of a child who is named in the will or would be entitled to a share of your estate had you died without a will 
• a person managing your estate under a guardianship or administration order immediately before your death.

An Estate may be contested on the basis that an eligible claimant believes they were not adequately provided for by the deceased following their death. Additionally, if the deceased prepared a will and you believe the deceased did not have capacity to prepare a will at the time that it was, you may be able to seek an order to the Court that the will is invalid due to the deceased’s incapacity.

Only the following people can apply to contest an Estate:

• your spouse or domestic partner (or both)
• any former spouse or domestic partner, unless a particular type of financial agreement, entered into on or after 1 January 2025, was in force between you and your former partner 
• your child 
• your stepchild, if they are vulnerable due to disability, depended on you when you died, cared for you before you died, or they or their parent contributed to your estate 
• a stepchild under the age of 18, if you were looking after them financially before you died
• your grandchild, if their parent (your child) died before you, or you were looking after your grandchild financially before you died
• your parent, if they cared for you or you cared for them before you died 
• your sibling, if they cared for you before you died.

In South Australia, an application to contest an Estate must be made within six months of a Grant of Probate or Grant of Letters of Administration. However, at its discretion the Court can extend this period on application.

The eligible claimant must satisfy the Court that they have not received adequate provision from the deceased’s Estate and will 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
• any provisions the deceased made for the claimant during their lifetime.

The Court may also consider any other matters relevant to the determination of the claim.

Not many claims proceed to a trial with most first going through a mediation process with the aim the matter is resolved.