Inheritance Claims and Disputes
Contesting a will or challenging a will in South Australia requires early legal advice and clear evidence. Grope Hamilton Lawyers offers practical guidance on eligibility, family provision claims, probate and costs, so you can protect your position and resolve the estate.
Contesting a Will in South Australia
In South Australia, the following individuals are eligible to contest a will through a Family Provision Claim:
- Spouses or Domestic Partners, including current spouses, former spouses with ongoing entitlements, and de facto partners.
- Children of the deceased, which includes biological, adopted, and stepchildren, as well as grandchildren who can demonstrate dependence or a close relationship with the deceased.
- Other Dependants, such as parents or siblings, who relied substantially on the deceased for financial support and care.
These claims can be complex and require comprehensive evidence demonstrating your financial needs and the extent of your relationship or dependency on the deceased. Strict legal timelines must be observed, highlighting the importance of obtaining experienced legal advice early.
If an estate is not distributed fairly and legally, serious issues can arise. You may encounter significant financial strain, difficulties in maintaining your standard of living, or challenges in managing debts and financial commitments. Furthermore, unresolved estate disputes can intensify family conflicts, leading to strained relationships and emotional distress. These problems can be long-lasting, impacting both your financial security and personal wellbeing.
You may consider contesting a will through a Family Provision Claim if:
- You believe the will does not fairly or adequately provide for your financial needs.
- You feel your relationship with or contributions to the deceased have not been sufficiently recognised.
- You have been entirely excluded despite a legitimate expectation of support based on your relationship or dependency.
Contesting a will is a complex legal process involving strict timelines, detailed documentation, and substantial evidence. Without professional guidance, it can quickly become overwhelming, and critical mistakes or missed deadlines can compromise your claim. Grope Hamilton Lawyers provides essential support by:
- Clearly advising you on your eligibility and legal rights under the Succession Act 2023 (SA).
- Managing the intricate legal processes, paperwork and submissions required for your claim.
- Compiling compelling evidence and building a strong legal case to support your claim.
- Negotiating strategically and effectively with executors and other beneficiaries to reach a timely and fair settlement.
- Providing robust representation in court if your case advances to litigation, advocating vigorously on your behalf.
A person who wishes to challenge a will must do so through the Supreme Court of South Australia. Importantly, challenging a will is not about disputing the fairness of the distribution, but rather about ensuring the will reflects the true, voluntary, and informed intentions of the deceased and complies with the legal requirements for a valid will.
Challenging a Will in South Australia
Disputes over a deceased estate can arise for many reasons. In South Australia, it is important to distinguish between contesting a will and challenging a will, as these are separate legal processes with different purposes and eligibility criteria.
Contesting a will usually refers to a Family Provision Claim, where an eligible person seeks further provision from the estate because they have not been adequately provided for. In contrast, challenging a will involves questioning whether the will itself is legally valid. These two pathways are not interchangeable and involve separate legal procedures.
A person who wishes to challenge a will must do so through the Supreme Court of South Australia. Importantly, challenging a will is not about disputing the fairness of the distribution, but rather about ensuring the will reflects the true, voluntary, and informed intentions of the deceased and complies with the legal requirements for a valid will.
In South Australia, the following individuals may have legal standing to challenge the validity of a will:
- A beneficiary under the current or previous will whose entitlements have been removed or significantly reduced.
- A family member or dependent who would otherwise be entitled to inherit under the laws of intestacy if no valid will existed.
- Any other person with a legitimate interest in the estate and evidence suggesting the will is invalid.
To challenge a will, the person must have a genuine legal interest in the outcome of the estate and valid grounds to question the will’s validity.
Ensuring that a will is legally valid is essential to upholding the deceased’s true intentions. If there are concerns about how the will was created or signed, or about the deceased’s capacity at the time, it may lead to the estate being distributed in a way that does not reflect the law or their wishes.
Common grounds for challenging a will include:
- Lack of testamentary capacity – The testator did not understand what they were signing or the consequences of doing so.
- Undue influence – Someone applied pressure on the testator to benefit themselves or others.
- Suspicious circumstances – The will was signed shortly before death, or prepared by someone who benefits substantially from it.
- Failure to meet legal formalities – The will was not properly signed or witnessed in accordance with the Succession Act 2023 (SA).
- Fraud or forgery – There is evidence that the will was tampered with, altered, or not signed by the deceased.
How is a will challenged in practice?
- Check whether probate has been granted. If not, you may file a probate caveat with the Supreme Court to pause the process.
- File formal court proceedings to set out the reasons why the will is alleged to be invalid.
- Gather and submit evidence, such as medical records, expert opinions, or witness affidavits.
- Allow the court to decide whether the will is valid or if an earlier valid will or intestacy rules should apply.
- Given the seriousness of setting aside a will, courts require strong evidence and adherence to strict procedures.
Challenging a will involves complex legal and evidentiary considerations. At Grope Hamilton Lawyers, our experienced estate litigation team provides practical, objective, and strategic guidance throughout the process.
We can assist you with:
- Advising whether your situation meets the legal grounds to challenge the validity of a will.
- Guiding you through the early stages, such as placing a probate caveat to pause estate administration.
- Helping collect and assess evidence, including obtaining medical reports, reviewing witness information and identifying potential risks.
- Preparing court documentation, such as affidavits and formal applications required to initiate or respond to proceedings.
- Representing your interests in court if the matter proceeds to a hearing, or negotiating with other parties to resolve the matter where possible.
While we cannot alter the facts of the case, we offer expert advice, procedural knowledge, and a practical understanding of how courts evaluate will validity. Our role is to ensure your case is presented clearly, lawfully and with the right evidence to support your position.
If you are concerned about the validity of a will or believe your loved one’s wishes may not have been properly reflected, contact Grope Hamilton Lawyers. We are here to guide you through the process with clarity, professionalism and care.
What Sets Grope Hamilton Lawyers Apart
Established Reputation in South Australia
Since 1983, our firm has served individuals and families across South Australia with integrity, professionalism, discretion and results. We are a long established firm with a genuine commitment to the communities we serve.
Comprehensive Expertise
We are one of the few firms with genuine depth in both estate planning and estate litigation. This dual focus allows us to anticipate potential weaknesses in Wills, assess risks with precision, and act decisively in protecting our clients’ interests.
Tailored and Strategic Representation
Every dispute is different. We take the time to understand your circumstances, your objectives, and the dynamics of your family or estate. Your legal strategy is always built around what matters most to you, supported by thorough preparation and sound advice.
Strategic Negotiation and Litigation Expertise
Most disputes can be resolved through careful negotiation or mediation, but when court proceedings are unavoidable, our senior lawyers bring extensive litigation experience. We are trusted advocates before the Supreme Court of South Australia, ensuring that your case is prepared, presented and argued with strength and precision.
Clarity, Communication, and Cost Transparency
From the outset, we provide clear explanations of your rights, the legal process, expected timelines and costs, and the likely outcomes. We do not overpromise, we provide realistic, strategic guidance and demystify complex issues, so you can make informed decisions with confidence.
Proactive and Practical Problem-Solving
Our approach is to resolve disputes efficiently, avoiding unnecessary escalation whenever possible. By addressing issues early, we help preserve both the estate and family relationships while still securing your rightful entitlements.
Recognised by Clients and Peers
Much of our work comes through referral from past clients and from other lawyers who value our specialised experience. Our standing in the legal community reflects our commitment to professionalism, discretion, and results.
Disputes involving wills require not only technical legal knowledge but also judgment, discretion and practical experience. At Grope Hamilton Lawyers we combine four decades of trusted service with a reputation for excellence in contested and challenged estate matters. We deliver experience, insight and clarity when you need it most.
When the distribution of an estate is in dispute, experience, authority and strategic insight matter. Grope Hamilton Lawyers stands ready to provide the guidance and representation you need to secure a fair and lawful outcome. If you are considering contesting or challenging a Will in South Australia, speak with our team today on (08) 8231 0088.
Frequently Asked Questions
For a family provision claim, the application is generally made within six months after the grant of probate or administration. The court has power to extend time in limited circumstances, and delay can reduce available remedies.
If you are challenging validity, you should act before probate is granted, where possible. A probate caveat can be lodged to pause the grant for a limited time.
If a contest succeeds, the court can make a family provision order that adjusts the distribution so you receive proper provision. The financial effect is usually shared across beneficiaries according to their interests.
If a validity challenge succeeds, the impugned will is set aside, an earlier valid will may be admitted, or the estate may be distributed on intestacy.
If a contest fails, the will stands and no further provision is made.
If a validity challenge fails, the will continues to operate and administration proceeds. Costs are at the discretion of the court, you will usually pay your own legal costs, and in some cases a party can be ordered to pay another party’s costs.
Costs are discretionary. The estate usually meets the reasonable costs of the executor. Applicants commonly bear their own costs unless the court orders otherwise. Where a claim was reasonably brought, the court may order payment from the estate. Where a claim lacked merit or caused unnecessary expense, the court can order a party to pay costs. We explain likely costs and cost risk at the outset and as the matter progresses.
Confirm that you are eligible to apply under the current law. Notify the executor promptly so your position is recorded and the time limit is protected. Gather clear evidence of financial need, dependency and contributions, and of the nature and history of your relationship with the deceased. Keep records of income, assets and liabilities. Where capacity or undue influence is in issue, obtain medical and factual material from appropriate sources. Seek early legal advice so evidence is preserved and the timetable is managed. At Grope Hamilton Lawyers we assess eligibility, identify the issues in dispute, prepare affidavit material, request targeted disclosure, arrange expert evidence where justified, and prepare for mediation to place you in the best position to resolve the matter.