Can you challenge a will in South Australia? Sometimes, but not simply because you disagree with it. The law generally respects a person’s right to decide how their assets are distributed. However, this freedom is balanced by legal protections for specific family members and dependents who have not been adequately provided for. This article explains how family provision claims work in South Australia, who is eligible to apply, what the Supreme Court considers, and the strict time limits.
Understanding the Difference: Challenging Validity vs. Family Provision
When people speak about “challenging a will,” they are typically referring to one of two distinct legal pathways:
- Challenging the Validity of a Will: This argument asserts that the will itself is invalid. Grounds might include a lack of mental capacity by the person making the will, undue influence or pressure from others, or improper signing and witnessing.
- Making a Family Provision Claim: This path accepts that the will is legally valid but contends that the deceased failed to make adequate provision for the applicant’s proper maintenance, education, or advancement in life.
Family provision claims can also be made if a person died without a will (intestacy) or if their will does not dispose of all their assets.
What the Law Says
Family provision claims in South Australia are governed by Part 6 of the Succession Act 2023 (SA) which replaced the Inheritance (Family Provision) Act 1972 (SA) on 1 January 2025.
The Supreme Court may make a family provision order if an eligible person has been left without adequate provision for their proper maintenance, education or advancement in life.
If a claim succeeds, the Court can order that provision be made for the applicant out of the estate. It can order a lump sum, periodic payments, or both, and can attach conditions.
South Australian law starts from the idea that people are free to leave their estate to whomever they choose. A family provision order is an exception to that freedom. It is not a right to a share.
Who Can Apply?
Section 115 of the Succession Act 2023 (SA) lists who can apply for family provision. A person outside these categories cannot make a family provision claim under Part 6 of the Act.
Spouses, domestic partners and children can apply without meeting any further condition in s 115. A “child” includes a person recognised as the deceased’s child under the Family Relationships Act 1975 (SA).
Other applicants must meet specific criteria:
| Category | Statutory Requirements to Qualify |
| Former Spouse or Former Domestic Partner | Must show that, immediately before the deceased’s death, no valid financial agreement under the Family Law Act 1975 (Cth) made on or after 1 January 2025 was in force between the applicant and the deceased. |
| Step-child | Must show at least one of the following: a disability creating significant vulnerability; dependence at death; caring for, or contributing to the maintenance of, the deceased immediately prior to death; that the step-child substantially contributed to the deceased’s estate; or that assets accumulated by a parent of the step-child (other than a step-parent) substantially contributed to the deceased’s estate. Minor step-children may qualify if the deceased maintained them, or they were legally entitled to be maintained, wholly or partly, immediately before death. |
| Grandchild | Must show either that their parent (the deceased’s child) died before the deceased, or that they were maintained or legally entitled to be maintained (wholly or partly) by the deceased immediately before death. |
| Parent | Must show either: (a) if the deceased died in a residential facility, that they cared for, or contributed to the maintenance of, the deceased immediately before the deceased entered the facility; or (b) in any other case, that they cared for, or contributed to the maintenance of, the deceased immediately before death, or were maintained wholly or partly by the deceased immediately before death. |
| Sibling | Must show they cared for, or contributed to the maintenance of, the deceased immediately before death (or, if the deceased died in a residential facility, immediately before the deceased entered it). |
What Does the Court Consider?
Being eligible to make a claim allows you to apply, but it does not guarantee a successful outcome.
Under section 116(2) of the Act, the wishes of the deceased are the primary consideration for the Court. The Court also examines:
- any evidence explaining the deceased’s reasons for their distributions
- the applicant’s financial vulnerability and dependence on the deceased
- contributions made by the applicant to the deceased’s estate or welfare
- the applicant’s character and conduct – the Court may refuse to make an order if it considers that the applicant’s character or conduct disentitles them to relief
The Court may also consider any other matter it thinks relevant. This might include, for example, the size of the estate and other competing claims.
The Court must also take into account any government welfare payments the applicant receives or may be entitled to receive, and whether an order could worsen the applicant’s financial position.
Importantly, unfairness alone is not enough. The Court does not rewrite wills simply to make them equal or fair; it intervenes only where adequate provision for maintenance and support was not made.
Costs and Security for Costs
Family provision claims can be expensive and stressful. The Court can order a party to give security for costs that may later be awarded against them. It may do so if it appears that the party’s claim may be without merit, or that the party is unwilling to negotiate a settlement.
Many estate disputes are resolved by negotiation or mediation before a final hearing. A lawyer can explain the likely costs and risks before you commit.
Strict Time Limits Apply
Timing is critical in estate disputes.
- The 6-Month Deadline: An application must be filed in the Supreme Court of South Australia within 6 months from the date Probate or Letters of Administration are granted (section 118(1)).
- Extensions of Time: While the Court has discretion to grant an extension (section 118(2)), there are two important restrictions:
- An application for an extension must be made before the final distribution of the estate assets.
- Distributions already made prior to the extension application cannot be disturbed or undone.
If assets have already been distributed to beneficiaries, you may be unable to recover them even if an extension is granted.
Practical Steps If You Think You May Have a Claim
- Work out who you are under the Act. Check whether you fit a category in s 115, and any conditions attached.
- Find the date of the grant. Your 6-month period runs from then. The application must be filed in the Supreme Court within that time.
- Collect evidence early. This includes proof of your financial position, your relationship with the deceased, and any care or financial support you provided.
- Seek advice before the deadline is close. An extension is not guaranteed. Any application for an extension must be made before final distribution, and earlier distributions will not be undone.
- Consider settlement. Claims can often be resolved by agreement, which can save time and cost.
Key Takeaways
- Family provision claims in South Australia are made under the Succession Act 2023 (SA).
- Only certain people can apply. Many, such as step-children, grandchildren, parents and siblings, must meet extra conditions.
- You must generally apply within 6 months of the grant of probate or letters of administration.
- The deceased’s wishes are the primary consideration. The Court must also weigh your vulnerability, dependence, contributions, and character and conduct.
- Success is not automatic. The outcome depends on the facts and the Court’s discretion.
If you think you may have a claim, speak with an estate lawyer soon. Early advice helps you understand your options before time runs out.
Disclaimer: This article is general information only and is not legal advice. Family provision law is complex and depends on individual circumstances. You should obtain independent legal advice about your situation.