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Contesting a Will

There are several ways a person may contest a will: namely, making a deed of family arrangement; having a will declared as invalid; or making an application under the Inheritance (Family Provision) Act 1972 (SA) for inadequate provision. In each case legal advice is needed.

Deed of family arrangement

If all beneficiaries are adult, have full mental capacity and agree, a will may be altered after the testator's death by a deed of family arrangement.

A deed of family arrangement is a document which outlines an agreement between parties with an interest in an inheritance - this can include beneficiaries, executors, trustees and even creditors of the estate. It is used either where all parties are agreed that they would like to alter the terms of the will, for whatever reason, or where there is a disagreement over a will and the disputing parties are able to reach a compromise without going to court.

A deed of family arrangement can have stamp duty and capital gains tax implications. Professional advice is needed on this issue.

A deed of family arrangement cannot be used:

  • to avoid a claim under the Inheritance (Family Provision) Act 1972 (SA). This is because it is contrary to public policy for a person to contract out of their right to an inheritance (Lieberman v Morris (1949) 69 CLR 69). Even if a deed of family arrangement has been effected, a claim under the Inheritance (Family Provision) Act 1972 can still be instituted. Daebritz v Gandy [2001] WASC 45 is an example of a case where court proceedings were allowed to proceed after a deed had been entered into.
  • where one of the persons affected by the deed is an infant (under the age of 18)
  • where a person lacks legal capacity to sign a contract.

In any of the above instances a court order will be necessary to make the deed of family arrangement enforceable at law.

Contesting a Will  :  Last Revised: Thu Nov 13th 2014
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.