Estate Disputes
Estate Disputes
Generally, capable adults in South Australia have something called “freedom of testation”. This means that you can leave your property however you like in your will. Although this is the general rule, there are laws that limit this freedom.
What is Inadequate Provision in a Will?
The Inheritance (Family Provision) Act 1972 (SA) allows the Supreme Court of South Australia to give an eligible person part of your estate, even if this is contrary to your clearly expressed wishes in your will. This is based on the policy position that there are some people for whom you should make provision in your will.
These types of estate disputes sometimes end up in the Supreme Court, but you should always try to avoid escalating the matter to this point. A trial is time-consuming, stressful, and expensive. A solicitor can help parties explore options to reach a quicker and less stressful agreement, saving you the time and trouble of going down that path.
Challenging Provision
Only spouses, domestic partners, former spouses or former domestic partners, children and grandchildren can automatically bring an Inheritance Act claim against an estate. Parents, siblings, and stepchildren have a limited right to bring a claim. An applicant must show he or she is in financial need, but having a mortgage or dependants is often enough to satisfy that step. Some people may also have to show they have supported the deceased person during his or her life. Strict time limits apply for challenging an estate, so we recommend you obtain legal advice quickly.
Can a Superannuation Binding Death Nomination (BDBN) be Challenged?
Your superannuation is not immediately part of your deceased estate, and therefore it is not automatically distributed according to the terms of your will. Many people complete a Binding Death Benefit Nomination (BDBN) form and submit it to their superannuation fund, leaving instructions as to who should receive their superannuation if they die.
If you do not have a BDBN, or it has lapsed, then your superannuation will be distributed according to the decision of the trustee of the superannuation fund.
Your close relatives and dependants can challenge the decision made by the Trustee. They can also challenge any BDBN you left.
What is a Challenge to the Validity of a Will?
When you make a will, you must have the mental capacity to understand what you are doing, and you must make your will freely and without undue influence. If there is any reason to believe that you did not make your will freely and with full understanding (or if the will might be a forgery) then someone with “standing” can challenge the validity of the will.
In South Australia, you only have standing to challenge a will if you are a beneficiary of the will (or an earlier will), or you would be entitled to a share of the estate if there was no will. A challenge is made through the Supreme Court of South Australia.
How Can We Help You with an Estate Dispute?
We can represent you if you wish to challenge or contest a will or defend and uphold the validity of a will, or the gifts in the will. Will contests and challenges are subject to strict time limits, so it is essential you seek advice as early as possible.
Every situation is different. We take care to understand your story, and to achieve the best outcome for you. Sometimes that will involve reaching a settlement to avoid the cost and inconvenience of a trial; other times, that means pushing ahead to realise your full entitlement.
We are highly experienced in estate disputes and litigation. We know what must be proven, and we give sound practical advice about your prospects of successfully succeeding with or defending a claim. Our team also appreciates the benefits of resolving matters as quickly and efficiently as possible to allow all involved to move forward with their lives. We will work with you to provide options, protect your rights, and negotiate a fair settlement.
If you need assistance, contact one of our lawyers at [email protected] or call 08 8231 4757 for expert legal advice.