Disputes about Wills and estates are time-sensitive and fact-specific. These answers explain the main claims, evidence and processes in South Australia.
What is the difference between challenging a Will and challenging an estate?
Challenging a Will disputes its validity on grounds such as fraud, duress, undue influence, lack of capacity or improper execution. Challenging an estate, by contrast, generally means making a family provision claim for greater provision from a valid Will (or an intestacy), on the basis that inadequate provision has been made for the claimant.
Who can contest a Will or make a family provision claim in South Australia?
Eligible applicants under the Succession Act 2023 (SA) typically include a spouse or domestic partner, children, and in some circumstances other persons who were financially dependent on the deceased or had a reasonable expectation of provision.
Is there a time limit to contest a Will or estate in South Australia?
Yes. Strict time limits apply to family provision and Will challenge claims under the Succession Act 2023 (SA), and prompt advice from a specialist estate litigation lawyer is essential, since delay can extinguish an otherwise valid claim.
On what grounds can a Will be challenged?
A Will can be challenged on grounds including undue influence, lack of testamentary capacity, improper execution, fraud, a later valid Will having been made, or genuine uncertainty about its meaning.
What is undue influence in the context of a Will?
Undue influence occurs where a testator was pressured into making or changing a Will in a way that did not reflect their genuine free wishes. In certain situations, such as where a beneficiary was present when instructions were given, the law may presume undue influence unless it is rebutted.
What is testamentary capacity?
Testamentary capacity refers to a person's mental ability, at the time they make a Will, to understand the nature of the document, the extent of their assets, and the claims of people who might reasonably expect to benefit. A Will made without capacity can be declared invalid.
My relative made a DIY Will that looks suspicious — what should I do?
Prompt advice from a specialist estate litigation lawyer is essential. If time permits, a Caveat can be lodged at the Probate Registry of the Supreme Court of South Australia to prevent the estate being administered without notice to you, while the circumstances are investigated.
My relative was unwell when they signed their Will — can it be challenged?
Yes, a Will can potentially be challenged on the ground of lack of testamentary capacity if the testator did not understand the nature and effect of the document at the time of signing. Medical evidence and prompt legal advice are essential.
Can I dispute a decision by a superannuation fund about who receives a death benefit?
Yes, in some circumstances. A Binding Death Benefit Nomination is only valid if the nominee qualifies under the relevant superannuation legislation at the date of death — it does not operate simply like a Will — and disputes about eligibility or process can potentially be challenged.
What is a caveat in the probate context?
A caveat is a formal notice lodged at the Probate Registry of the Supreme Court of South Australia that prevents a grant of probate or administration being issued without notifying the person who lodged it, used to protect a potential challenge to a Will or estate.
How common are family provision disputes in South Australia?
Inheritance and family provision disputes have become increasingly common in Australia in recent years, reflecting an ageing population, greater accumulated wealth, more complex blended family structures, and rising community awareness of the right to make such a claim.