Family provision claims in SA: who can contest a will
Family provision claims let certain eligible people apply for additional provision from an estate. Here's the SA framework.
In South Australia, family provision claims allow certain eligible people (spouses, partners, children, in some cases parents) to apply to the court for additional provision from an estate where they believe the deceased did not make adequate provision for them. The current framework sits within the Succession Act 2023 (SA).
Who can claim
Spouse and qualifying de facto partner. Children (including adopted, sometimes stepchildren in defined circumstances). Former spouse in some cases. Dependent grandchildren. Dependent parents. Each category has its own eligibility tests.
What the court considers
The size of the estate. The claimant’s financial circumstances. The claimant’s relationship with the deceased. The deceased’s reasons for the testamentary disposition. The interests of other beneficiaries. Anything else the court considers relevant.
Time limits
Strict time limits apply – generally 6 months from grant of probate, with extension only in limited circumstances. Late claims face significant hurdles.
Reducing risk
Provision in the will, even modest, often reduces claim risk. A statement of reasons (sometimes called a ‘memorandum of wishes’) explaining the rationale for distribution choices is admissible and helpful. Sam drafts these as part of estate planning where claim risk exists.
Settlements
Most family provision claims settle before trial – often through mediation. Litigation is expensive (typically $50,000+ per side) and family-damaging. Early mediation usually produces better outcomes.
Summary
Family provision claims let certain eligible people apply for additional provision from an estate. Here’s the SA framework.
Talk to Sam about your situation
If this article raised questions for your own circumstances, Sam Michele offers free 20-minute initial consultations. Learn more about our wills service, or book a consultation.