It is an unfortunate, but all too common, scenario that upon the death of a family member – usually a parent – the spouse or children of that family member are left fighting over who should get what from the deceased’s estate.

Many people assume that what is written in a Will is water tight and unable to be challenged. However, this is not the case. Family provision legislation in each State enables a person who considers that they have not been left with their fair share of the inheritance to make a claim on the estate by asking the Court to vary a Will.

Specifically, the (Inheritance (Family Provision) Act) of South Australia allows the Court to make such provision as it thinks fit out of the estate of a deceased person for the maintenance, education or advancement in life of a claimant.

This places a moral obligation upon a parent to ensure that they make adequate provision for each of their children. This does not necessarily mean that a parent’s estate should be divided equally amongst their children.  Rather, when making a Will, a parent should give consideration to each child’s needs and circumstances.

Who can Make a Claim?

Most commonly, it is a spouse or child making a claim under the Act. However, ex-spouses, dependant children of a spouse or domestic partner and even grandchildren parents and siblings can make a claim under the Act.

When Should the Claim be Made?

Claims under the (Inheritance (Family Provision) Act) must be made within 6 months of the date of a grant of probate or letters of administration.

How are Claims Determined?

Applications under the (Inheritance (Family Provision) Act) are determined according to a two step test.

The first step is determining whether the claimant has been left with adequate provision for their proper maintenance, education and advancement in life. This requires a consideration of the claimant’s financial position, the size and nature of the estate, the claimant’s relationship with the deceased and the relationship between the deceased and other people who have legitimate claims upon the estate.

If the first step of the test is satisfied, and the Court considers that a claimant has been left without adequate provision, then a Court will assess what, if any, provision it should make. In doing so, the Court will consider what provision a just and wise parent would have made for their child in the particular circumstances.

When applying the test, there are a number of issues which commonly arise, such as:

  • whether a parent is required to make provision for their adult children;
  • whether estranged or errant children have disentitled themselves; or
  • whether a claimant has made any significant contribution to the estate of the deceased entitling that claimant to a larger share of the inheritance.

These are just some of the factors that are taken into account by a court.

What is important to note is that whilst there is no way to guarantee that your Will is water tight and unable to be challenged under the inheritance legislation, there are ways that you can minimise the chances of this happening and minimise the changes made to your wishes.

First and foremost – have your Will prepared by a lawyer. Whilst this might seem like a shameless plug for work, there are significant benefits that can be achieved from spending a little bit of time and money in putting your affairs in order.

If you would like more information in relation to a potential claim under the (Inheritance (Family Provision) Act) please contact Mark Minarelli.

This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this article, or what it means for you, your business or your clients' businesses, please feel free to contact us.

For more information, please contact...

Mark Minarelli

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