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Invalid wills

Someone with a legal interest in an estate may argue that a deceased person's will is invalid because:

  • the testator did not have legal capacity when they made it
  • the testator did not understand the will when they signed it (for example, if the testator did not understand English)
  • someone put pressure on the testator to make the will
  • someone else fraudulently signed the will or tricked the testator into signing it
  • it is not the last will and testament of the deceased
  • the will had been legally revoked before the testator died
  • the content of the will is unclear or it does not comply with the legal requirements of a valid will.

If a disputed will is eventually approved by the Court, a grant in solemn form is made.

The Supreme Court, not the Probate Registry, interprets wills. The executor, or a party interested in the estate, may ask the Court to decide what the deceased meant by the will. For example, the deceased may have left something to "my grandson George" and there may be more than one grandson named George.

If the Court accepts that a will does not accurately reflect the wishes and intentions of a deceased testator, the Court may order that the will be rectified (fixed) to properly reflect the testator's intentions [Succession Act 2023 (SA) s 22(1)].

An application for rectification of a will must be made within 6 months after the grant of probate or administration [s 22(2)]. This time limit may be extended provided an application is made before the final distribution of the estate [s 22(3), (5)].

The Court can only interpret the words in the context in which they appear, according to their usual meaning. No outside evidence may be used in interpreting the will. For example, if the will says "bank account", the Court cannot accept evidence that the deceased meant "building society account". The only exception to this is when the words in the will do not make sense in the circumstances. The words "bank account" have a clear meaning, unless the deceased had no bank accounts. In these circumstances, the Court may refer to evidence that the deceased always, for example, called the building society the "bank".

Unless the Court is able to exercise its power to rectify a will [Succession Act 2023 (SA) s 22], the Court will not accept evidence about the direct intention of the deceased. A statement by the deceased to a beneficiary that they would be receiving a certain gift would not be used by the Court in interpreting the will.

Invalid wills  :  Last Revised: Mon Dec 30th 2024
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.