The loss of a family member is always a sad time, but it may become an even more distressing experience if you find that you have not been included in the deceased’s Will. If you have recently discovered that you were left out of your parent’s Will, you will likely be asking yourself “how do I challenge a Will?”.
Will disputes are stressful, especially if you believe your parents were under undue influence. So, how do I challenge a Will and the share of the deceased Estate, you may ask? We’ll talk you through some of the most frequently asked questions to help you get started with contesting a Will (SA).
Overview:
- How do I challenge a Will? The two ways explained
- Who can contest a Will?
- When can a Will be contested?
How do I challenge a Will?
Sadly, we have seen occasions where an elderly parent has been taken to a solicitor to change their Will, usually to the benefit of one or more of their children, and to the detriment of others. Those left out of the Will had no knowledge of this until their parent passed away. Understandably, they suspect that the parent was coerced or confused during their Wills and Estate planning.
In other cases, a parent and child may have been estranged for many years and the parent consequently left the child out of the Will. When circumstances change or the parent becomes ill, the child and parent reconcile and settle their differences. Before the parent is able to change their Will, however, the parent passes away.
In circumstances such as those described above, the child who has not been provided for may wish to consider challenging the Will or contesting the Estate. There are two ways contested Wills and Estates can take place.
1. Challenge the validity of the Will
How do I challenge a Will? One way, is to challenge the validity of the Will on the basis that the Will maker lacked the mental capacity (or legal capacity) to make the Will, or didn’t understand what they were signing. You may also suspect that your parent (the deceased person) was under undue influence.
2. Make a claim under the Inheritance Act
When you’re contesting a Will (SA), a claim can be made under the Inheritance (Family Provision Claim) Act on the basis that the Will maker failed to provide for a family member where they had a moral obligation to do so.
If a Will is found to be invalid by virtue of the incapacity of the Will maker, then the deceased’s estate will be distributed in accordance with the last known valid Will. If no earlier Will exists, then the estate will be distributed as if the deceased died without a Will; generally it is divided between the spouse and children of the deceased.
Who can contest a Will?
An Inheritance claim can be made by certain family members including:
- Spouses
- Former spouses
- Children
- Grandchildren
- Parents and siblings (in certain cases)
To show that you are entitled to receive some benefit from the estate you must show that:
- The deceased had an obligation to provide for you and;
- that you have been left without adequate provision for your proper maintenance, education or advancement in life.
When can a Will be contested?
It is important to note that estate disputes are subject to strict time limits. So, if you are concerned, be sure to get legal advice as soon as possible or you may be barred from making a claim.
If you have more questions related to ‘how do I challenge a Will?’ or simply require further information surrounding contested wills and estates (even if you need help with your Estate planning or the distributions of the Estate) please contact our Wills and estates lawyers on 8362 6400 or email us at adelaide_lawyers@beger.com.au.
Join our mailing list to receive updates and advice on current issues.
People also asked:
What does an executor of a Will do?
An executor of a will is the person(s) or organisation(s) chosen by the Will maker to carry out the terms of the Will. This includes, but is not limited to: contacting the beneficiaries to advise them of the Will’s content; ensuring the assets of the estate are secure and insured; paying any debts and distributing the net estate, and making funeral arrangements.
Who pays legal costs when contesting a Will?
Generally speaking, a beneficiary with a legitimate claim will recover their reasonable legal costs from the estate irrespective of whether their claim is wholly successful or not. It is of course important to keep in mind that the more costs that an estate is forced to pay, the less that will be available for distribution to beneficiaries as a whole.
What is an informal Will?
An informal will is one which does not comply with the requirements of section 8 of the Wills Act. In South Australia, a valid will must be in writing, signed by the testator in the presence of 2 adult witnesses (all present at the same time), and the witnesses must also sign in the presence of the testator and each other.
The Supreme Court can admit an informal Will to Probate if it is satisfied that the informal Will expresses the testamentary intentions of the deceased and that the deceased intended the document to constitute his or her last Will.
