Contesting a Will in South Australia: What You Need to Know

Few events test the fabric of a family more severely than a dispute over a deceased person’s estate. Whether it arises from surprise, grievance, or a genuine sense of injustice, a challenge to a Will can be emotionally exhausting and financially costly. Yet the law recognises that there are circumstances in which such challenges are well-founded, and South Australia’s succession legislation provides clear pathways for eligible persons who believe they have been inadequately provided for or that a Will does not reflect the testator’s genuine intentions.

Two Main Different Types of Challenge

It is important at the outset to distinguish between two quite different kinds of Will challenge, because they proceed on different legal grounds, involve different parties, and attract different remedies.

The first is a challenge to the validity of the Will itself. This type of challenge asserts that the Will is not legally effective at all — for example, because the testator lacked testamentary capacity when they signed it, because the Will was not executed in accordance with the formal requirements of the Succession Act 2023 (SA), or because the testator was subject to undue influence or fraud. If such a challenge succeeds, the Will (or the affected portion of it) is set aside, and the estate is administered as if that Will had never existed, which typically means falling back on an earlier Will or, if none exists, on the intestacy rules.

The second type of challenge is a family provision claim. This does not question the validity of the Will at all. Rather, it argues that although the Will is valid, the testator failed to make adequate provision for the claimant’s proper maintenance, education, or advancement in life.

If a family provision claim succeeds, the court orders that provision be made out of the estate, effectively overriding the testator’s expressed wishes to the extent necessary.

Understanding which type of challenge applies to your situation is the essential first step. The two pathways are procedurally distinct and the relevant legal tests are quite different.

Challenging the Validity of a Will

A challenge to a Will’s validity proceeds in the Supreme Court of South Australia and is typically brought by a person who would benefit from an earlier Will or from the intestacy rules if the challenged Will were set aside.

Lack of testamentary capacity is the most commonly raised ground. Under the Succession Act 2023 (SA), a person has testamentary capacity if, at the time of making the Will, they understand the nature and effect of making a Will, the extent of the property they are disposing of, the natural objects of their bounty (meaning those who might reasonably expect to benefit), and the claims those persons might have upon them. Cognitive decline, dementia, mental illness, or the influence of medication can all potentially give rise to a capacity challenge, but the mere fact that a testator was suffering from one of these conditions does not automatically mean they lacked capacity at the precise time of execution.

Undue influence is a separate ground. It requires proof that the testator’s will was so overborne by another’s pressure or coercion that the resulting Will was not truly the testator’s own act. Mere persuasion, however persistent, does not suffice. The pressure must have been of a character that substituted the influencer’s will for that of the testator.

Formal invalidity can arise if the Will was not properly executed. The Succession Act 2023 (SA) requires that a Will be in writing, signed by the testator (or by another at their direction and in their presence), and witnessed by two persons present at the same time. However, the Act also grants the Court a remedial discretion to admit to probate a document that does not satisfy all formal requirements if the Court is satisfied the document embodies the testator’s testamentary intentions.

Challenges to the validity of a Will are typically made in the context of probate proceedings. Once probate has been granted, a challenge becomes considerably more difficult, though not impossible. Prompt action is essential.

Family Provision Claims Under the Succession Act 2023 (SA)

Family provision claims in South Australia are governed by the Succession Act 2023 (SA), which consolidated and updated the former regime. The Act identifies a class of eligible persons who may apply to the court for provision out of a deceased person’s estate.

Eligible applicants include the deceased’s spouse or domestic partner, a child of the deceased (including an adopted child and, in some circumstances, a stepchild), a former spouse or domestic partner in certain circumstances, and a person who was being maintained by the deceased immediately before their death. The breadth of the eligible class reflects the legislature’s recognition that the deceased’s moral obligations do not track legal relationships alone.

The critical question is whether the Will makes “adequate provision for the proper maintenance, education or advancement in life” of the eligible person. The court considers a wide range of factors including the applicant’s financial position and needs, the nature and duration of the relationship with the deceased, any contributions the applicant made to the deceased’s estate or welfare, any provision already made during the deceased’s lifetime, the size of the estate, and the competing claims of other beneficiaries.

Critically, the court does not simply impose its own view of what a fair distribution would look like. The question is whether the Will falls short of adequate provision in the circumstances — a threshold that requires the court to consider what a wise and just testator in the same position would have done.

A large estate does not guarantee a large award. Conversely, a relatively modest estate can still generate a family provision claim if the circumstances warrant it. The proportionality of the claim to the estate size is an important practical consideration.

Strict Time Limits Apply

Family provision applications under the Succession Act 2023 (SA) must be made within a prescribed period from the date of the grant of probate or letters of administration. The Act provides for an extension of time in appropriate circumstances, but extensions are not automatic and the court will scrutinise the reasons for delay. A claimant who sits on their rights may find the door closed.

Similarly, the executor or administrator of an estate should be aware that early distribution of estate assets to beneficiaries, in the knowledge or reasonable expectation of a potential family provision claim, can expose the executor to personal liability. Prudent executors obtain proper legal advice before making distributions in contested or potentially contested estates.

The Costs Question

One of the most important practical considerations in any Will dispute is legal costs. Will challenges and family provision proceedings can be expensive, and the outcome is rarely certain. Courts have a discretion as to costs orders, and while successful claimants will often receive a costs order in their favour, this is not guaranteed and unsuccessful claimants may find themselves bearing both sides’ costs.

Early and frank legal advice, including a realistic assessment of the prospects of success, is invaluable. Mediation and negotiated settlement resolve a substantial proportion of these disputes without the need for a contested hearing, and the costs and emotional toll of a settlement are invariably lower than those of contested litigation.

Conclusion

Contesting a Will is a serious step that should not be taken without careful thought and sound legal advice. Whether your concern is the validity of the Will itself or the adequacy of the provision made for you, there are legal pathways available. Time limits are short and strict, the factual and legal questions are complex, and the outcomes depend heavily on the particular circumstances. Genders and Partners has extensive experience in succession disputes and family provision claims and is well placed to advise you on your options.

Want to Find Out More?

If you would like further advice about contesting a Will or making a family provision claim in South Australia, contact our friendly team.

When it comes to Wills, Probate, Deceased Estates, asset protection and estate planning in Australia, you can trust the oldest law firm in South Australia – Genders & Partners – to guide you through the tough decisions you must make for your family’s future care and welfare.

If you have any questions or would like further information, or a quick phone call to discuss, book a timeslot for a free 15-minute phone consultation.

We can help you to protect yourself and your family. We look forward to being of service.

More Resources on Will Disputes and Family Provision

• FAQs
• Videos – Will Disputes and Family Provision
• Wills and Estate Planning – Overview
• Probate and Estate Administration
• Adelaide Lawyer Blog

All these and many more succession law topics are available for discussion with the oldest law firm in South Australia. Visit our articles page to explore our complete library of estate planning resources.

DISCLAIMER: This article is intended as general information only and does not constitute legal advice. The law in this area is complex and the circumstances of each individual differ. You should obtain specific legal advice from a qualified practitioner before taking or refraining from any action. Genders and Partners accepts no liability for reliance on this article without such advice.

This article was prepared 24 April 2026.

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Rod Genders is a senior Australian lawyer specialising in trusts, Wills and estate planning, accident compensation, and probate and deceased estate administration in Adelaide and all over South Australia. His boutique specialist law firm, which was founded on 1848, is one of the oldest and most respected in Australia. Rod is also a prolific author and speaker.  Some of his articles and books on Wills, Probate, Trusts, Estate Planning, Asset Protection and Retirement Planning may be found at www.genders.com.au.

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