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Contesting a Will in South Australia

How to Contest a Will PLUS Tips on Avoiding Having Your Own Will Contested

Last Will and Testament - A Guide to Contesting a Will in South AustraliaIntroduction

photograph-depicting-a-man-and-a-woman-seeking-advice-from-a-lawyer-in-2024-about-contesting-a-Will.

Contesting a Will in South Australia has some different aspects to its laws than in other States of Australia.

** An important point to be aware of is that a claim must be made within 6 months of the grant of probate. NOTE: The Grant of Probate is the proving of a Will, the acceptance by the Probate Registry of the Supreme Court that the deceased’s Will is valid and the last Will in existence.

A Will may be contested for several reasons. For instance, someone may believe that your Will is unfair and does not adequately provide for them. However, should they decide to contest your Will after your death, they will have to show the court that you failed to provide for their proper maintenance. Notably, the court has wide powers to examine all of the circumstances including your relationship with the person contesting and whether they helped look after you.

Another example is that someone may also seek to challenge the validity of your Will. They may argue that you did not have legal capacity when you made the Will, that you were pressured by a third party, or that the content of your will is unclear.

The law in this area is rather complex. Bottom line is that, if someone believes that they may have a claim, they will need legal advice as soon as possible. 

Finally, there is the making an application under the Inheritance (Family Provision) Act 1972 (SA) for inadequate provision.

Special Note: The South Australian Parliament passed the Succession Act 2023 (SA) on 18 October 2023, and the Act received the Governor’s assent on 31 October 2023, however it will only commence on a date yet to be proclaimed by notice in the Gazette. When the Succession Act commences, it will introduce significant reforms, and this information will be updated accordingly.

The Reasons for Contesting a Will

The first reason, as addressed in our Introduction, is when someone believes that your Will is unfair and does not adequately provide for them. More on this will also be discussed further in this section [ the Inheritance (Family Provision) Act 1972 (SA) ].

I’m confident that you’ve seen or heard “horror stories” about folks contesting a Will for no other reason than personal greed. Nevertheless, in many cases, this does not obviate their rights to claim and indeed, achieve a successful outcome in doing so!

Not all people entitled to apply under the Act will obtain a re-allocation order. Still, here’s a list of those who can apply:

  • the spouse of the deceased person
  • a person who has been divorced from the deceased person
  • the domestic partner of the deceased person
  • a child of the deceased person
  • 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 or her death
  • a child of the child of 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 brother or sister 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.

   NOTE: A ‘domestic partner’ is someone who was in a registered relationship with the deceased under the Relationships Register Act 2016 (SA) at the date of death or some earlier date or someone declared to have been a domestic partner of the deceased under the Family Relationships Act 1975 (SA) at the date of death or some earlier date. 

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The second reason:

Let’s look at a situation where someone seeks to challenge the validity of your Will. When arguing that a Will is invalid, a person contends that the Will presented for the grant of probate was not intended by the deceased to be her or his Last Will and Testament.

This may be because:

  • it was not the last Will made by the deceased
  • the deceased lacked the mental capacity to make a Will
  • the deceased did not understand the Will (for example, the testator did not understand English and was asked to sign it)
  • someone else used undue influence or pressure to force the testator to make the Will
  • the signature on the Will has been forged or there has been some other fraud
  • the Will presented to the court had been revoked.

   NOTE: If a disputed Will is eventually approved by the court, a grant in solemn form is made.

Grant of Probate in Solemn Form

Compared the summary process of proof in common form, where the application is typically dealt with by the Probate Registry of the Supreme Court, proof in solemn form is more complex in procedures and forms and requires opening a litigation file in the Court. Due to its great complexity, it usually delays the administration of an estate and costs more in legal fees and expenses.

Furthermore, if there is any doubt as to the validity of a Will or any apprehension that there may be opposition, it is open to the executor or any person with a beneficial interest under the Will to prove it in solemn form. On application for proof of a Will in solemn form, notice of the Court proceedings must be served on all persons having an interest in upholding or contesting the validity of the Will, together with a warning to those persons that they will be bound by the result of the proceeding.

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The final reason:

Prologue: A general principle of law is the freedom of testation, that is, you can give your estate to whomever you wish. However, this can be unfair and unjust. A good example of this is when a spouse or child of the deceased suffers hardship as a result of the deceased’s whims, such as giving money to a particular organisation or ignoring the needs of a dependant.
 
This is where we get to the all-important Inheritance (Family Provision) Act 1972 (SA) which was passed to rectify this situation. Briefly, the object of this Act is to allow the court to award to an eligible applicant part of the deceased’s estate, even though the deceased had left nothing, or very little, to that person in the will. 
 
NOTE: Please refer back to the “The first reason” section to see which people are entitled to apply under the Act to obtain a re-allocation order.

Over the years, courts have created certain guidelines as to what is adequate provision for proper maintenance. The main standard is that the court must put itself in the position of the deceased and consider the case as a wise and just, rather than a fond and foolish, family member.

Some of the important considerations are:

  • the size of the estate
  • the age, health and financial position of the applicant. It is necessary for the applicant to prove that she or he is in financial need, or that there is some other special reason why provision should be made for her or him. For example, an applicant in a good financial position might still succeed if it is shown that the deceased was able to build her or his estate through the substantial efforts of the applicant.
  • the closeness of the relationship between the applicant and the deceased.
 
The latter point is particularly worth noting given the propensity of claims involving family members who had been estranged (usually voluntarily by them) and then deciding to come back into the “family fold”.

Deed of Family Arrangement

Group of willing family members listening to a lawyer explaining the provisions of a Deed of Family Arrangement

Thankfully, not all families resort to greed or self-entitlement fantasies upon the death of a family member. We naturally hope for the right scenario to play out for any family business confronted with Estate issues.

So – if all beneficiaries under a Will are adults, have full mental capacity and agree, a Will may be altered after the testator’s death by a deed of family arrangement.

A deed of family arrangement is a document which outlines an agreement between parties with an interest in an inheritance – this can include beneficiaries, executors, trustees and even creditors of the estate. It is used either where all parties are agreed that they would like to alter the terms of the Will, for whatever reason, or where there is a disagreement over a Will and the disputing parties are able to reach a compromise without going to court.

A deed of family arrangement can have stamp duty and capital gains tax implications. Professional advice is needed on this issue. So please contact us in the first instance for assistance.

A deed of family arrangement cannot be used:

  • to avoid a claim under the Inheritance (Family Provision) Act 1972 (SA). This is because it is contrary to public policy for a person to contract out of their right to an inheritance [Lieberman v Morris [1944] HCA 13]. Even if a deed of family arrangement has been effected, a claim under the Inheritance (Family Provision) Act 1972 can still be instituted. Daebritz v Gandy [2001] WASC 45 is an example of a case where court proceedings were allowed to proceed after a deed had been entered into.
  • where one of the persons affected by the deed is an infant (under the age of 18)
  • where a person lacks legal capacity to sign a contract.

 

In any of the above instances a court order will be necessary to make the deed of family arrangement enforceable at law.

Some of the information contained herein is supplied by the Legal Services Commission South Australia. Please note their disclaimer here.

Tips to Avoid Having Your Own Will Contested

TIP #1

Businessman signing his Will in the presence of his lawyer and doctor

When planning your Will, have your estate plan drawn up with the help of an experienced lawyer with an adequate provision for every beneficiary. The best course of action is to have both your lawyer and your medical provider present when you sign your Will. This way these legal professionals can testify that you were of sound mind at the time of signing.

We also recommend consulting your specialist estate planning/wealth management advisor before having your estate plan drawn up. This particularly applies if you have a family business/family office. Your advisor will be able to guide you on the best path to ensuring that your estate assets are well-protected and that you have taken into account all factors that could otherwise see your Will being contested.

We also highly recommend that, in particular, you refer to our articles “Wealth Transfer Challenges for Family Businesses“, “Are These Yours? Waiting, Waiting, Waiting…“, and “How to Future-Proof Your Family Dynasty Part 5.

TIP #2

When creating a Will, be sure to discuss your personal wishes with your family and your lawyer. Someone may be more likely to contest a Will when they are surprised by the contents of that Will. If they were expecting to receive an estate asset that was never supposed to go to them, they could become overwhelmed with the feeling that the Will is unfair.

To mitigate the chances of this happening, ensure that everyone involved is on the same page. Therefore, there will be a reduced risk of the Will being contested in the future. 

Suffice to say, it’s also paramount that your Will is kept up to date. Main reason being that it is harder to contest a Will that is accurately revised when lifestyles and asset acquisition circumstances change. On the other hand, an old Will may not reflect the current situation and therefore be easier to contest. Work with your financial adviser and lawyer to keep your Will current.

Image of Last Will and Testament with the words "You get Nothing" and also showing a young man expressing angry surprise at the contents of a deceased person's Will

TIP #3

Store a Letter of Wishes alongside your Will.

A Letter of Wishes is a very good way of explaining your decisions and reasons for leaving your estate in the way you have chosen. This document is separate and will help to prevent someone from contesting your Will.

Such a letter will add context and background to justify your decisions when writing your Will. Consequently, it allows you to have a voice during the litigation process after you have passed away.

By allowing you to explain your choices, this should defend your estate against litigation and help to prevent someone from contesting your Will.

FOOTNOTE: Make sure that everybody who is eligible to contest your Will receives a reasonable amount in your Will.

It sounds simple, but you’d be surprised how many overlook this step when creating their Will and Estate plan. Ensuring that you leave adequate provision for all appropriate family members and loved ones is one of the easiest ways to prevent a dispute – especially if you think they could contest the Will after you pass.

Of course, you don’t have to make equal provisions for each person, but we highly recommend communicating the reasoning behind your choices. Hence the benefit of having a Letter of Wishes in place.

Having a comprehensive statement about your testamentary intentions will create more understanding and prevent a claim from arising. Notably, if you don’t want an eligible person to receive any benefit, the court may disqualify them from receiving provisions from your Estate because they were either;

🔸 estranged from you;
🔸 defrauded you;
🔸 assaulted you;
🔸 or was otherwise of bad behaviour to you or your family.

As a final tip/reminder, refer to the Inheritance (Family Provision) Act 1972 (SA) as it is a valuable source of reference.

Summary

We hope that by now, you have a much better understanding of the factors that can lead to someone contesting a Will. Hopefully also, you will see the merit in our Tips on how to avoid having your own Will contested and why both are so important for family businesses. If you’re still having trouble making sense of all the information we’ve given you here, we encourage you to first talk with an experienced estate planning adviser about how they can help you achieve your succession planning objectives.

How FBA Can Help You With Your Estate & Succession Planning

At Family Business Advisory (FBA), our purpose is to help family businesses succeed on a sustainable basis. As such, we provide you with access to specialist family, business and technical services with a goal being to generate opportunities for families in business.

In order to complement our own particular specialised skills, over the past several decades, we have developed a network of trusted, professional advisers in such areas as:

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Moreover, we work at all times to give you peace of mind and proactive support to help navigate any changes in the market brought about by legislative changes, geopolitical events and general market conditions – all to maximise your personal wealth and security.

These services are provided by FBA, in association with the Wealth IQ Group.

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