Disputes about Wills and estates are time-sensitive and fact-specific. These answers explain the main claims, evidence and processes in South Australia.
Can a stepchild make a family provision claim?
Stepchildren may be eligible to make a claim in certain circumstances, depending on factors such as the nature of their relationship with the deceased and any financial dependency, though eligibility is more limited than for a testator's own children.
Can a former spouse make a family provision claim?
A former spouse may be eligible to claim in some circumstances, generally where there is an ongoing entitlement or dependency that was not otherwise resolved, though this depends heavily on individual facts.
What factors does the Court consider in a family provision claim?
The Court generally considers the size and nature of the estate, the applicant's financial position and needs, their relationship with the deceased, competing claims of other beneficiaries, and any moral obligation the deceased may have had toward the applicant.
Can mediation resolve a contested estate dispute?
Yes. Many estate and family provision disputes are resolved through mediation or negotiated settlement rather than a full court hearing, which can save significant legal costs and reduce the emotional toll on family relationships.
What happens if a family provision claim is not resolved before probate is finalised?
Executors are generally advised to be cautious about distributing an estate until the relevant time limits for family provision claims have passed, since a distribution made in the face of a pending or reasonably anticipated claim can expose an executor to personal risk.
Can I challenge a Will if I believe it was fraudulently created?
Yes. Fraud is a recognised ground for challenging a Will, though it can be difficult to prove and generally requires strong supporting evidence and specialist legal advice from the outset.
What is the difference between contesting a Will's validity and seeking greater provision from a valid Will?
Contesting validity argues the document itself is not a true and valid Will (for example due to fraud, incapacity or undue influence) and, if successful, results in an earlier Will or intestacy applying instead. Seeking greater provision accepts the Will is valid but argues it does not adequately provide for the claimant.
Do I need a lawyer to make a family provision claim?
Given the strict time limits, technical eligibility tests, and the discretionary nature of the Court's assessment under the Succession Act 2023 (SA), specialist legal representation is strongly recommended for any family provision or Will challenge matter.
What should I do if I suspect elder abuse influenced a recent Will?
Prompt advice from a senior lawyer experienced in estate litigation is essential. Evidence of pressure disguised as “helping” an elderly relative express their wishes may support a claim of undue influence, and time limits for action can be short.
Can jointly owned property or a joint tenancy be contested?
Yes. Jointly held property passes automatically to the surviving owner by survivorship, outside the estate, and generally beyond family provision claims in South Australia. It may still be challenged on grounds such as undue influence, incapacity, or disputed severance of the tenancy.