Can your Will be contested?

A Will is a written declaration of how property is to be distributed upon the maker’s death, but can your Will be contested?

Lawyers prepare Wills in accordance with strigent guidelines and procedures. Surely this means that your testamentary intentions will be honoured and your property distributed as per your wishes.

Not necessarily.

The Inheritance (Family Provision) Act 1972 (SA)  (“Family Provision”) provides an avenue for contesting an individual’s Wills, if certain criteria is satisfied.

When can your Will be contested?

Under the Family Provision, the Court has discretion to award part of the deceased’s estate if a successful Applicant has been left without adequate provision for the proper maintenance, education or advancement in life. This power operates irrespective of the intentions of the deceased.

However, an application to contest a Will must be made within 6 months of probate or letters of administration.

Who can can contest my Will?

Presently, there is a finite cateogry of persons who can contest your Will. These include:

  • Marriage partner of the deceased
  • Person who has been divorced from the deceased
  • Domestic partner of the deceased at the time of their death
  • Child of the deceased
  • Step child of the deceased (in limited circumstances)
  • Grandchild of the deceased
  • Parent of the deceased (in limited circumstances)
  • Brother or sister of the deceased (in limited circumstances)

What does “adequate provision’ really mean?

The Courts refers to both legislation and common law when determining what would constitute “adequate provision’. Ultimately, the Court puts itself in the position of the deceased and considers what a wise and just, rather than a fond and foolish, individual would have done.

The Court will also look at:

  • Applicant’s relationship with the deceased
  • What assets the applicant already has
  • Size of the deceased estate
  • What is required for the proper maintenance, education and advancement in life for the applicant

What can I do?

Family Provision claims are often technical and complex. Accordingly, it is a good idea to seek legal advice on what implications the Family Provision has upon how you want your Will drafted.

Talk to your lawyer or contact us at Mildwaters Lawyers to explore how these provisions relate to your situation.


Image: Last Will And Testament by Ken Mayer via Flickr. CC BY 2.0