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Norman Waterhouse

When can you contest a will?

The death of a loved one is never easy. In addition to dealing with the emotion of losing someone very close to you, circumstances may arise where your loved one’s will is contested.

The main avenues for contesting a will in South Australia are:

1. Contesting the validity of the will:

1.1 did the deceased have requisite capacity to make it? or

1.2 was the deceased unduly influenced by someone to include provisions in their will favouring that person or parties related to that person?

or, if the deceased did have requisite capacity to make their will and there is no undue influence involved, then

2. Contesting the manner in which the deceased has chosen to distribute the assets falling into their estate by initiating a claim under the Inheritance (Family Provision) Act 1972 (SA) (IFPA).

Contesting the Validity of the Will

To challenge a will, a person must have an “interest” in the estate of the deceased person. A person may have an “interest” in the estate if they:

  • are a beneficiary in the final will of the deceased;
  • were a beneficiary in a prior will of the deceased; or
  • would be entitled to make a claim if the deceased died intestate (i.e. the deceased died without making a will).

Testamentary capacity

Testamentary capacity is evident when the will maker:

  • understands the nature of the act of making a will and its effects at law;
  • is aware of the nature and extent of the assets they are disposing of in their will; and
  • appreciates the fact that if certain potential beneficiaries are not provided for, those potential beneficiaries may initiate claims against the estate.

If a will maker suffers from a medical condition, this may affect their ability to satisfy the above criteria. However, just because a will maker has a medical condition, this does necessarily mean that they lack capacity to make a will. There are many examples of the Courts making a finding that a will maker had capacity to make a valid will, despite there being some evidence of them suffering to varying degrees from some kind of mental disorder, dementia, senility and advanced age, alcoholism, delusions or eccentric habits. It is a matter of fact and degree for the Courts to make a determination as to whether capacity to make a will did or did not exist at the relevant time.

When considering any application to invalidate a will for lack of testamentary capacity, the Courts will consider all of the relevant facts and evidence including particularly independent medical opinions in respect of the deceased (whether obtained before or after the deceased’s death).

A will must also represent the deceased’s testamentary intentions. If a will does not represent a deceased’s testamentary intentions then it can be declared wholly invalid or certain portions of the will may be declared invalid. The onus is on the person raising the issue of lack of knowledge to establish that the deceased did not, on the balance of probabilities, know and approve some or all of the contents of the will.

If testamentary capacity exists, the deceased will be assumed to have had knowledge of the content and effect of the terms of the will by virtue of having executed the document. In some circumstances though, this assumption can be rebutted by the Court if there are facts to support lack of knowledge. For example, the question may well arise as to whether there are any well-grounded suspicious circumstances surrounding the execution of a will, such that the document itself does not really express the mind of the deceased. Such circumstances may include a beneficiary or a close relative of a beneficiary drafting the deceased’s will in circumstances where that friend or relative is being bequeathed a sizeable benefit out of the estate.

Other examples of suspicious circumstances may include:

  • the deceased was frail, unwell and illiterate;
  • any sudden unexplained change of testamentary direction; and
  • control over the deceased being exercised by a favoured beneficiary.

Undue Influence

Undue influence arises where influence by a person overbears the free-will of the will maker, so much so that the will maker executes a will disposing of assets, which is not in accordance with the disposition of assets that the will maker wants.

The party alleging undue influence must prove that power was exerted to cause a will to be drafted and executed in terms sought by the undue influencer and not in terms sought by the will maker. The party alleging undue influence must prove the existence of facts from which undue influence can be inferred.

The Courts pay close attention to a claim of undue influence where the deceased was very old, infirmed or did not receive independent legal advice at the time of executing the will. However, it is very difficult indeed to prove the existence of undue influence without securing compelling evidence in support and therefore it is only in exceptional circumstances that a claim of undue influence will be successful.

Inheritance Claims under the IFPA

Eligible applicants

A person is entitled to make such a claim if they are:

  • The spouse, a divorced spouse or a domestic partner of the deceased;
  • A child of the deceased;
  • A child of the deceased’s spouse or domestic partner if they were being maintained by the deceased before death;
  • A child of the child of the deceased;
  • A parent of the deceased if they can show that they cared for, or contributed to the maintenance of the deceased person during his/her lifetime; and
  • A brother/sister of the deceased, if they can show that they cared for, or contributed to the maintenance of the deceased during their lifetime.

An inheritance claim can be made where:

  • a person has died while residing in South Australia or owns real/personal property in South Australia; and
  • a person who is entitled to claim a benefit under the IFPA is left without adequate provision for their proper maintenance, education or advancement in life.

There are strict time limits that apply if you wish to institute an IFP claim against an estate. Such claims must be instituted through the court and served on the Executor within six (6) months of the date upon which an Executor obtains a Grant of Probate (or an Administrator obtains a Grant of Letters of Administration).


There are many issues to consider when challenging the validity of a will or seeking provision out of an estate. It is important to promptly seek legal advice to ensure that you are informed of the prospects of success if you chose to take action.

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