Challenging a will in South Australia
Wills can be challenged on several grounds in SA. Here's the framework and what's involved.
A will in South Australia can be challenged on grounds including lack of testamentary capacity, undue influence, fraud, or improper execution. Separately, a person can make a family provision claim under the Succession Act 2023 (SA) for additional provision. The two are distinct legal actions with different requirements and remedies.
Validity challenges
Lack of capacity at time of execution. Undue influence by a beneficiary or third party. Fraud (forged will or deception). Improper execution (witnessing failures). If successful, the will is invalid and an earlier valid will applies, or intestacy rules apply.
Family provision claims
Different from a validity challenge. The will is accepted as valid; the claimant argues the will didn’t make adequate provision for them. Successful claims result in additional provision from the estate, not invalidation of the will.
Time limits
Validity challenges have flexible time limits but practical urgency. Family provision claims have strict limits (typically 6 months from grant of probate). Acting promptly is essential.
Costs
Costs are typically borne by the estate where the challenge has merit. Bad-faith challenges can result in personal cost orders against the challenger. Most matters settle before trial.
Reducing the risk
Capacity-supported execution: medical assessment around the time of signing for clients with health concerns. Independent advice: ensuring the testator has independent advice especially when leaving disproportionately to one beneficiary. Memorandum of wishes: documenting reasoning. Adequate provision for those who could claim, even if modest.
Summary
Wills can be challenged on several grounds in SA. Here’s the framework and what’s involved.
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Disclaimer: This article is general information only and does not constitute legal advice. Estate planning is deeply personal - every family's circumstances are different. For advice specific to your situation, please contact Rosewood Succession Solicitors.