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I have heard that leaving my son a dollar in my Will prevents him from contesting my estate. Is this true?

It is a commonly held belief that if you have a legally drafted Will which includes a token provision for a family member, then that person can’t bring a claim against the estate. This is not the case.

Even though you have left your son a legacy in your Will, your son is still entitled to make a claim against your estate as an eligible family member under the South Australian Inheritance (Family Provision) Act 1972. Your son will have six months from the date that Probate is granted in which to make such a claim, noting that the Court may grant an extension of this timeframe.

If your son chooses to make a claim he will need to establish that he has not been adequately provided for. The Court will consider whether this is the case taking into account circumstances of the family dynamics, the estate assets and the individual circumstances of the person making the claim, including his proper maintenance, education or advancement in life.

The Court may refuse to make an order in favour of your son on the grounds that his character or conduct disentitles him to an increased benefit from your estate.

An experienced Wills & Estate Planning solicitor can assist with strategies to mitigate the possibility of a claim being made on your estate. These may include asset structures, binding superannuation nominations and advice on what constitutes “adequate provision” to the family member involved.

Chantelle Moore
Solicitor
Wills & Estate Planning | Administration of Deceased Estates | Contested Estates
cmoore@scammell.com.au

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