The loss of a family member is always a difficult time but is even more so where you discover that you have been left out of a will, or have received less than you believe you were entitled to.
Generally, a person has the right to leave their property to whoever they choose – a principle known as “testamentary freedom”. However, the Court can override a testator’s wishes and has the power to vary the will in circumstances where a family member has been left out or not adequately provided for.
Inheritance Law in South Australia
The Inheritance (Family Provision) Act 1972 (SA) (“the Act”) allows for eligible persons to make a claim against the estate of a deceased person for greater provision than they have received under the will or where they have been left out of the will altogether. However, not everyone can contest a deceased person’s will.
Who can make an inheritance claim?
Under the Act the following persons are eligible to make a claim for further provision from the estate:
- A current or former spouse of the deceased person;
- A domestic partner of the deceased person;
- A child of the deceased;
- A child of a spouse or domestic partner of the deceased who was maintained by the deceased immediately before their death;
- A grandchild of the deceased; and
- A parent or sibling of the deceased who cared for or contributed to the maintenance of the deceased during their lifetime.
Criteria for Claiming
To successfully claim under the Act, a claimant must establish that they were left without adequate provision for their maintenance, education and advancement in life.
The strength of any claim depends on a number of factors including:
- The size of the estate;
- The financial position and future needs of the claimant;
- The relative financial need of any other claimants and/or beneficiaries under the will;
- The relationship between the claimant and the deceased;
- Any provision which may have been made for the claimant during their lifetime; and
- Any conduct by the claimant which may be considered “disentitling”.
If the Court determines that inadequate provision has been made, it may exercise its discretion to make an order for further provision taking into account all the circumstances of the case. There is no science or formula for calculating what additional provision should be made and each case will turn on its own facts. It is therefore important that you obtain legal advice specific to your own personal circumstances.
A claim under the Act must be made within 6 months from the date of the Grant of Probate. If a claim is not made within this time your application may be barred. If Probate of the will has already been granted it is important that you obtain legal advice as soon as possible so that appropriate steps can be taken to ensure that the estate assets are not distributed to the beneficiaries.
Although in specific circumstances an extension of time may be granted, the Court has no jurisdiction to make orders in respect of estate assets that have already been lawfully distributed to beneficiaries. Even if you have been unfairly left out of a will, if you do not act swiftly in notifying the Executors of your intention to make a claim, you may find that there is nothing left of the estate to claim.