Contesting a will can be a complex and emotional process, especially when there are concerns about fairness, validity, or exclusion from an estate. At Mahony’s, our experienced contesting a will lawyers in Adelaide are here to provide clear, expert legal advice on how to challenge a will and protect your rights as a beneficiary or family member. In South Australia, there are specific legal grounds and time limits for contesting a will, and it’s important to understand your rights and obligations before taking action.
Whether you believe you have been unfairly left out of a will, suspect the will was not properly executed, or feel the deceased lacked mental capacity when the will was made, we are here to guide you through the process. We work to ensure that all claims are resolved efficiently and fairly, either through negotiation or, if necessary, in court.
When Can You Contest a Will in South Australia?
There are several grounds on which a will can be contested, including:
- Lack of Provision (Family Provision Claims)
If you were financially dependent on the deceased and believe you were not adequately provided for in the will, you may be entitled to make a family provision claim. Under South Australian law, eligible people such as spouses, children, stepchildren, and certain dependents can contest the will if they have been unfairly treated or left out. - Lack of Testamentary Capacity
A will can be contested if there is evidence that the deceased lacked the mental capacity to understand the nature and effect of the will when it was created. This could be due to age-related conditions like dementia or other mental health issues. - Undue Influence or Fraud
If the deceased was pressured, coerced, or manipulated into making changes to their will, or if there is evidence of fraud, the will may be invalid. Contesting the will on these grounds requires strong evidence, and our legal team can help you build a case. - Improper Execution
A will can be contested if it was not signed and witnessed in accordance with the legal requirements set out in the Wills Act 1936 (SA). For example, if the will was not signed in the presence of two witnesses, it may be deemed invalid. - Suspicion of a Forged Will
In rare cases, a will may be challenged on the grounds that it was forged or fraudulently altered. If you suspect a will is not authentic, we can help investigate and, if necessary, challenge its validity in court.
The Process of Contesting a Will in South Australia
Contesting a will involves several steps, and it’s important to act quickly due to strict time limits. Our contesting a will lawyers will guide you through the process, ensuring your rights are protected at every stage.
- Initial Consultation and Case Review
The first step is to assess the grounds for contesting the will. We’ll review the details of your case, including your relationship to the deceased, the terms of the will, and whether there are legal grounds to challenge it. This step is crucial for determining whether a claim is likely to succeed. - Filing the Claim
Once we have established a valid basis for contesting the will, we will file a claim with the Supreme Court of South Australia. This involves submitting the necessary legal documents and outlining the grounds for your challenge. In family provision claims, you typically need to demonstrate financial need and explain why the will’s provisions are inadequate. - Negotiation and Mediation
In many cases, disputes over a will can be resolved through negotiation or mediation. Our goal is to achieve a fair outcome without the need for lengthy court proceedings. We will represent you in these discussions, ensuring your interests are protected while working towards a mutually agreeable settlement. - Court Proceedings (if necessary)
If mediation does not resolve the dispute, the case may proceed to court. We will represent you in court, presenting evidence to support your claim and advocating for a fair distribution of the estate. Court cases can take longer to resolve, but our team will be with you every step of the way.
Time Limits for Contesting a Will
In South Australia, there are strict time limits for contesting a will. For family provision claims, you generally have 6 months from the date probate is granted to file a claim. It’s crucial to seek legal advice as soon as possible to avoid missing these deadlines. Extensions can sometimes be granted, but they are not guaranteed and are subject to the court’s discretion.
Who Can Contest a Will in South Australia?
Not everyone can contest a will. Under South Australian law, only certain people are eligible to make a claim. This includes:
- Spouses: Current and former spouses of the deceased can contest the will if they believe they have not been adequately provided for.
- Children: Biological and adopted children, as well as stepchildren in certain circumstances, are eligible to challenge the will.
- De Facto Partners: De facto partners who were living with the deceased at the time of their death can make a family provision claim.
- Dependents: Anyone who was financially dependent on the deceased, such as grandchildren or stepchildren, may be eligible to contest the will.
- Parents and Siblings: In rare cases, parents or siblings of the deceased may be eligible to contest the will, especially if they were financially dependent on the deceased.
Our team will assess your eligibility and help you understand your rights before proceeding with any legal action.
