The Inheritance (Family
Provision) Act only allows certain persons to bring a claim
against the estate of someone who has died. It includes a spouse,
ex-spouse, domestic partner and child. Only under
certain circumstances is a step child, grandchild, parent, brother
or sister able to make a claim.
Once you lodge a claim, you become an "applicant" and basically
you're suggesting that you are left without adequate provisions for
your proper maintenance, education or advancement in life.
The Court may then exercise its discretion to vary the Will to make
such provision for the maintenance, education etc.
The Court may refuse to make an order where the applicant's
character or conduct does not entitle them to the benefit of this
Act or for any other reason the Court thinks sufficient. This
disentitling conduct however, is rarely established.
An applicant has six months from the date of a grant in South
Australia of Probate or Letters of Administration to
commence their claim in Court. The Court may extend this time
but an application for an extension of time must be made before the
final distribution of the estate's assets. It's important to
note that any distribution of the estate made before the
application for extension of time will not be changed.
An executor or administrator has certain protection in relation to
distributions unless they had notice of a potential claim. A
notice of a claim must be in writing, signed by the applicant or a
solicitor and will prevent an executor or administrator from making
any distributions. This notice lapses after three months and
if a Court claim has not yet commenced the executor or
administrator may then distribute the assets of the estate without
You should speak to a solicitor if you wish to investigate making a
claim or issuing such a notice as there are many potential
Contrary to common misconception, a claim cannot be defeated simply
because some amount was provided for in the Will. Often
people state a belief that by providing an estranged son or
daughter with say $1,000 in the Will, then that will prevent that
child from bringing a claim. This is not
There are no hard fast rules as to what a Court may or may not do
in relation to these sorts of claims. The Court places itself
in the position of the deceased person and considers what he or she
ought to have done in all the circumstances of the case, treating
him or her as a wise and just, rather than a fond and foolish,
spouse or parent. A Court will often consider the
relationships involved and special circumstances of any applicants,
the means of the applicant, size of the estate and the relative
importance of any competing claims. For example, elderly
spouse versus working aged children.
Costs of the estate and the applicant are normally covered by the
assets of the estate. This in itself will often apply
pressure to work out settlement as the cost of prosecuting and
defending these sorts of matters in Court can be significant and
use a lot of funds out of the estate.
As we've said, there can be many pitfalls so if you're considering
contesting a Will, you should definitely seek professional legal
advice. A great starting point would be with the writer of
today's blog, our Senior Associate in Estate Planning, Greg Welden. He's more than happy to have
Please note, this Blog is posted in Adelaide, South Australia.
It relates to South Australian legislation.