Challenging a Will – “I think I should get more”

 

If you have been a dependent of someone who has died then this information is for you.

When a person dies, the law leaves it up to that person to decide how their assets will be shared or distributed according to their Will.  If a person dies without a will, there are laws about how the estate will be distributed to surviving relatives.

A Court will not usually interfere with what a person has put in his or her will or how property will be distributed even if there isn’t a will.  A Court can, if asked, make orders that change the share of the estate each person receives, regardless of whether a will has been prepared or not, if the deceased did not make adequate provision for after the future needs of his or her dependents.

If you were a dependent of someone who has died, and you do not receive an adequate share of their estate, you may be able to make an application to the Court to challenge how the estate is distributed.  This is a very complicated area of law and very specific time limits apply to when the application can be made.  You ought to get legal advice as soon as possible if you wish to challenge your distribution from an estate.

 

When can I challenge a will or distribution of an estate?

You may make an application for a greater share of an estate if you did not receive as much as other beneficiaries or you think you should have received a greater share of an inheritance, or you are unhappy that other family members were included in the will or distribution.

The law recognises that the role of a will or inheritance is to assist the deceased’s surviving family members and relatives.  The court can make adjustments if the applicant can demonstrate that the will or distribution does not make ‘adequate provision for the proper maintenance, support, education or advancement in life’ of the application.

 

Who can apply?

South Australian legislation sets out the persons who are entitled to make an application for a larger distribution as follows:

  • Spouse or de facto partner;
  • Former spouse or de facto partner;
  • Children;
  • Step children;
  • Grand children; and
  • The parents of the deceased.

The legislations provides the circumstances under which one or the other of the above parties can make an application for greater distribution.

 

When can you apply?

You must make an application within six months of the grant of probate or letters of administration.

In very rare circumstances, the Court will allow an extension of time within which to make an application.  It is recommended that an application is made well within the time limit.

If you are outside of the time limit, you ought to obtain urgent legal advice.

 

What factors will the court consider?

The applicant will have to prove:

  • their relationship to the deceased;
  • why they are entitled to a share or a larger share of the property; and
    • why the will (or distribution if there isn’t a will) does not properly provide for their future needs.

It is for the court to decide whether or not it will interfere. There are no automatic assumptions that all children should receive an equal share or how property should be divided under a will.

The court will take a number of things into account, including:

  • how any change to the share of the estate could affect other beneficiaries;
  • the sort of property involved and its value;
  • the ages of the surviving dependants;
  • the relationship to the deceased of other dependants;
  • the needs of other dependants and your needs; and
  • the way you acted towards the deceased during their life and your relationship in general.

 

If you would like to know more, contact one of our friendly staff at Bambrick Legal today:

  • Call us on 08 8362 5269
  • Email admin@bambricklegal.com.au
  • Fill in our enquiry form here
  • Visit our office at 133-135 Rundle Street, Kent Town SA 5067

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