According to the law in South Australia, an Estate can be contested if:
The person who died did not have the capacity to create the Will at the time it was signed
Another party exerted undue influence over the person who made the Will
The claimant believes they are entitled to more than what they received in the Will
Types of claims you can make
If you are thinking about contesting a Will, you’ll need to know the types of claims that may be applicable to you.
In order to make a claim within this provision, the claimant must be an eligible person as set out in the Inheritance (Family Provision) Act 1972. The categories of people eligible to apply include children and grandchildren. These people will need to claim that they have been left without adequate provision for their maintenance education and advancement and that a wise and just testator in the deceased’s position ought to have provided for them further.
Absence of Testamentary Capacity
This type of claim pertains to the state of mind and mental capacity of the deceased person at the time of signing their will. If you suspect that a person making a Will was of unsound mind, they may not have met the criteria needed to have the legal capacity to make the Will.
Breach of Trust
Under this claim, a beneficiary can make a claim against the executor of the estate if they suspect that the executor of fraud, maladministration or not administering the estate in accordance with the deceased’s Will.
Undue Influence Claim
If a person who unduly influences a person to make a Will, or is a person makes a Will under duress, then you may be able to make a claim that the Will is invalid. The claimant will need to provide proof that the person who created the Will was unduly influenced. However, a person who influences or puts pressure on a person to make a Will, will not usually be found to be unduly influencing the Will unless the behaviour is extreme.
Have you been left out of a Will? D’Angelo Lawyers can assist you with your case to contest a Will. For more information on making a claim under this category, please call us on (08) 8373 3363 or click the ‘make an appointment’ button above.
Creating a Will & Appointing an Executor
An executor is responsible for managing your estate and distributing it to your beneficiaries.