If you have been left out of a Will, or left without adequate provision from the Will, you may challenge it to be treated fairly. Claims of this kind are called claims for provision and are governed by the Inheritance(Family Provision) Act. If you wish to contest a Will, or have a question, call us on 08 7001 6135 for a free 30 minute consultation.
Strict time limits apply
Family inheritance disputes are subject to strict time limits. You should contact a lawyer as soon as the deceased person passed away. Generally, an application shall not be heard by the Court unless it is made within six (6) months from the date of the grant of probate of the Will, or letters of administration of the estate, of the deceased person. The court may grant an extension of time if a claim is made before the final distribution of the deceased person’s estate.
Why you need to speak to a lawyer
In some cases you may not know if you have been treated fairly under a Will. You may not even known if a Will exists, who the executor is, or what the Will says. Therefore, its important to seek legal advice as soon as possible after a relative passes away. We will apply to the Supreme Court to prevent another person from obtaining a grant of probate without you being informed of the application for the grant of probate. This lets you build the best claim for further provision from the estate. It costs nothing to contact us, and greatly outweighs the cost of not knowing.
Helpful Questions and Answers
WHO CAN MAKE A FAMILY PROVISION CLAIM?
Our estate planning lawyers have over 25 years of experience in family provision claims and inheritance disputes. We are here to guide you through the process and support you during this difficult time. You may be entitled to claim under the provisions of the Act in section 6 if you are one of the following:
- the spouse of the deceased;
- 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;
- a child of the child of the deceased person;
- a parent of the deceased; or
- or a sibling of the deceased person.
WHAT THE COURT TAKES INTO CONSIDERATION
Freedom of testation is a general principle of law that allows you to give your estate to anyone you wish. However, this may be unfair or unjust and occurs when a child or spouse suffers undue financial hardship as a result of the deceased’s decision. The test applied by the Court is whether the deceased failed to provide adequately for the applicant’s proper maintenance, education or advancement in life. The Court must balance a number of considerations before ordering greater provision to an eligible claimant. Some of these factors include:
- The quantum (size) of the estate – for example, if the estate is smaller it is less likely the Court will make a substantial redistribution between beneficiaries;
- The applicant’s relationship with the deceased – the Court is far less likely to make provisions for a child that is a family outcast or black sheep if their conduct has disentitled them in some way.
- The financial circumstances, health, and age of the claimant – for example, the Court is more likely to make provision for a young and poor family member versus financially independent family members.
WHO IS CONSIDERED A DOMESTIC PARTNER?
A domestic partner is anyone who was in a registered relationship with the deceased pursuant to the Relationships Register Act 2016(SA) before or at the date of death, or someone declared to be a domestic partner of the deceased pursuant to the Family Relationships Act 1975 (SA) before or at the date of death.
HOW INHERITANCE DISPUTES ARE SETTLED
Our inheritance dispute lawyers have successfully resolved a large proportion of inheritance family provision claims prior to trial. Whenever possible, we actively work with the Court and other side to encourage settlement options including mediation. If you wish to make a claim, contact us immediately so we may draft and send a formal notice of your claim to the administrator or executor and beneficiaries of the estate. The sooner you contact us the better.
HOW DO I GET A COPY OF THE WILL?
You may obtain a copy of the Will after the Supreme Court has granted probate to the executor of the Estate. This process may take many months after the deceased has passed away. If you considering making a claim, you may wish to check with the Supreme Court of South Australia to see if the Will has been lodged for probate. You may also ask the executor of the deceased’s estate, but he or she is under no obligation to provide a copy to you. Once a grant of probate has been obtained, the executor of the estate will contact the beneficiaries to inform them that they have been named in the Will.