Whether you need advice on a course of action to take, are engaged in a commercial dispute or are likely to engage in litigation, Corsers always works collaboratively with clients to make the decisions to protect you and your business.
Corsers have experience at all levels of the South Australian and Federal Law Courts on matters ranging from:
- residential and commercial contract breach disputes
- lease disputes
- building disputes (acting for builders, contractors and sub-contractors)
- bankruptcy and winding up proceedings
- corporations’ disputes
- inheritance claims
Contesting a Will
A will can be contested in a number of ways:
- A claim pursuant to the Inheritance (Family Provision) Act 1972 (SA)
- Challenging a Will as being invalid
- Deed of Family Arrangement
Inheritance (Family Provision) Act 1972 (SA)
The application must be made within six months of the grant of probate or letters of administration, although the Court may give an extension of time if the estate has not been completely administered.
The following people can apply for a re-allocation of the deceased’s estate:
- the spouse of the deceased person
- a person who has been divorced from the deceased person
- the domestic partner of the deceased person
- a child of the deceased person
- a child of a spouse or domestic partner of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his or her death
- a child of the child of the deceased person
- a parent of the deceased person who satisfies the court that he or she cared for, or contributed to the maintenance of, the deceased person during his or her lifetime
- a brother or sister of the deceased person who satisfies the court that he or she cared for, or contributed to the maintenance of, the deceased person during his or her lifetime
The test applied by the Court is whether the deceased failed to provide adequately for the applicant’s proper maintenance, education or advancement in life.
Each case will turn on its own facts however the Court will take into consideration:
- the size of the estate
- the age, health and financial position of the applicant
- the closeness of the relationship between the applicant and the deceased
Challenging a Will
A Will may be challenged on the basis that the applicant argues that the Will was invalid because:
- the deceased lacked mental capacity to make the Will
- the deceased did not understand the Will (ie the deceased does not speak or read English and was asked to sign it)
- it was not the last Will of the deceased
- there was undue influence or pressure to force the deceased to make or sign the Will
- forgery (ie the deceased signature was forged on the Will)
- the Will has been revoked
The executor or a party interested may apply to the Court for orders and directions including rectification of a Will.
Deed of Family Arrangement
A Will may be altered after the Will maker’s death by a Deed of Family Arrangement if all beneficiaries agree, are adults and have full mental capacity. The Deed will outline the agreement between the parties as to how the terms of the Will are to be altered.
A Deed of Family Arrangement can have stamp duty and capital gains tax implications.