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Home | Deceased Estates & Disputes | Inheritance Claims

Have you been left out or unfairly treated in a will?

If you have been left out of a will, or feel you have not been adequately provided for then you may be entitled to make a claim on that person’s estate. Making a claim means that you want to:

  • inherit from a deceased person’s estate;
  • inherit more than you have been allocated in a will; or
  • inherit more than what you have been allocated by law from the estate of a person who died without a valid will.

FAQ

Who can make a claim?

Who can make a claim?

In South Australia, the following persons are entitled to make a claim on a deceased person's estate:

  • a spouse;
  • a former spouse;
  • a domestic partner;
  • a child;
  • a child of a spouse/domestic partner who was maintained or entitled to be by the deceased person immediately before death;
  • a grandchild;
  • a parent – provided they cared for or contributed to the maintenance of the deceased person during the deceased person's lifetime;
  • a brother or sister - provided they cared for or contributed to the maintenance of the deceased person during the deceased person's lifetime.

When must a claim be made?

When must a claim be made?

There are strict time limits as to when claims can be made. It is important that you seek legal advice as soon as possible so that time limits can be complied with.

The legal documents to begin a claim must be filed in Court and served on the executor or administrator of the estate within six months of the date that probate or letters of administration is granted.

It is important that the executor or administrator be notified that you are considering making a claim in the meantime, so that the assets are not distributed.

As soon as you give formal notice of your intention to make a claim another time limit commences. Giving notice that you are considering making a claim is different from giving formal notice of your intention. If you have not filed documents in Court and served the documents on the executor or administrator within three months of giving formal notice, an executor or administrator is entitled to distribute the estate even if it is within six months from the grant of probate or letters of administration.

Extensions of time cannot be granted unless there are very special circumstances.

How much could you get?

How much could you get?

Before we can determine how much you may be able to receive, we need to first determine the size of the estate. We usually request a specific document from the executor or administrator, which is filed with the Court to determine the size of the estate. There are often additional expenses that need to be paid after that date, including funeral costs, legal fees and utilities bills, for example.

The strength of your claim depends on various factors including:

  • the size of the estate;
  • your financial position;
  • your future needs, taking into account your health, employment, etc;
  • your relationship with the deceased person;
  • any care provided by you to the deceased person;
  • any contributions made by you to the deceased person's estate;
  • any provision made to you by the deceased; and
  • competing claims of others.

What assets can I claim on?

What assets can I claim on?

The only assets that can be claimed on are those that form part of the deceased person's estate. These include assets that are held in the deceased person's sole name or as tenants in common, and not those held jointly with other persons. It also includes assets that are paid to the deceased person's estate, such as superannuation benefits in some instances.

Jointly owned assets, such as joint bank accounts or property owned jointly with another person will not form part of the deceased person's estate and therefore cannot be claimed upon. This is because jointly owned assets automatically pass to the surviving joint owner.

We can help you find out what assets the deceased person owned and the size of their estate.

Can the will-maker ("testator") stop me from making a claim?

Can the will-maker ("testator") stop me from making a claim?

A will-maker ("testator") cannot stop you from you making a claim so long as there are assets in their estate after all the debts are paid. You also need to be a person entitled to make a claim, as discussed above.

It does not matter if the testator wrote down reasons why they were excluding you or giving you less than others; or included a 'no contest' clause in their will.

There is a belief that as long as something is provided to a specific person in a will then they cannot make a claim. This is not a true. Unless the Court deems that a person who is entitled to make a claim has been adequately provided for by the deceased person, then that person may still be entitled to further provision.

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