Challenges to a Will or Estate in South Australia

“You never know anybody until you’ve shared an inheritance with them”

Challenges to Wills are far less common than challenges to estates. A Will can be contested or challenged when it is alleged that :

• the Will was executed under undue influence from others;
• the Will was executed when the testator lacked capacity to understand what he/she was doing. This is increasingly common due to the rise of dementia in our ageing population;
• the Will was tampered-with or altered after it was signed;
• the meaning of the Will is unclear;
• a later Will has been made by the Deceased;
• the Will was incorrectly executed or otherwise invalid due to a failure to follow the correct formalities;
• the Will has since been revoked;
• the Will was procured via fraud.

Additionally, there are some Orders available to the Court – called Equitable Remedies – which permits the Court to “re-write” the Will to achieve fairness and justice between interested parties.

For example, the deceased might have induced someone into doing something for them by causing them to believe they were provided for in the Will.

Typical examples include a younger person working in a family business or farm for low wages on the strength of the promise that’s/he would inherit some or all of the business/farm when the older person dies.

Alternatively a parent might go to live with one child who looks after them at the expense of their own career, upon promising that child something in return for their special care and sacrifice.

When the claimant has suffered a detriment in reliance on the promise, ie because the deceased ‘dudded’ them in the Will, then the Court can make a finding of “equitable estoppel” or a “constructive trust” in favour of the claimant, to re-distribute the deceased’s estate, despite the wording in the Will.

However the mere allegation of a promise will not suffice – there needs to be clear and compelling evidence, preferably in a well-drafted legal document.

For those who argue that a Will should never be able to be challenged, bear in mind that even while we are alive, we are not always able to do whatever we wish with our assets.

Consider a bankrupt person. They will have Court orders telling them what they can and cannot do with their income and their assets.

Similarly couples getting divorced can often be on the receiving-end of property distribution Orders from the Family Court.

Criminals can have their assets seized. And even in civil litigation, Court Orders can be made telling you to hand over assets to successful creditors and claimants.

So in death – as in life – our possessions are subject to the laws of the land, and we don’t always get our own way – particularly if we are being unfair or unreasonable.

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.

If you or someone you know is upset by the terms of a Will, our specialist expert consultants can help and our rates are very competitive. To learn more about our services please call (08) 8212 7233 or email mail@genders.com.au

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