- executed under undue influence from others
- executed when the testator lacked capacity to understand what he/she was doing
- tampered-with or altered after it was signed
- the meaning of the Will is unclear
- a later Will has been made by the Deceased
- incorrectly executed or otherwise invalid due to a failure to follow the correct formalities
- since been revoked
- procured via fraud
There are categories of persons who may be eligible to challenge a Will, however, challenging a Will is difficult and rare. It is far more probable that, if a challenge is to be made, it would not be to challenge the Will but to challenge the estate.
A beneficiary is sometimes disappointed with their share of what they receive under a will. It may be less than what they feel is fair, or they may not receive anything at all. Beneficiaries can also suffer hardship when someone dies without a will.
The main type of challenge to a deceased estate is where a disappointed beneficiary claims that insufficient provision has been made for him/her in the Will. Each State & Territory in Australia has local Family Provision legislation to permit certain categories of people to potentially claim for greater provision out of a deceased estate (such as spouse, children or others that the testator had an obligation to provide-for). These Acts illustrate that government has a vested interest in ensuring that people look after their own family if they have a legitimate expectation to share in the bounty of the estate.
The Inheritance (Family Provision) Act (SA) gives the court the power to change a will that doesn’t adequately provide for the maintenance and support of the deceased person’s spouse or children. If the court decides to change the will, it can order that the estate must provide for the spouse or children in a way that is adequate, just and equitable in the circumstances.
Enjoy this article? Check out the full report containing “A Guide for Beneficiaries of a Deceased Estate in South Australia” from senior Australian lawyer Rod Genders.
SPECIAL REPORT “A Guide for Beneficiaries of a Deceased Estate in South Australia”
Enjoy this article?
Check out the full report containing A Guide for Beneficiaries of a Deceased Estate in South Australia from senior Australian lawyer Rod Genders.