Sometimes, even the best of intentions can result in dispute when it comes to inheritances. If you are considering making a claim for further provision from a deceased estate, our team at Eckermann Lawyers can assist.
Who can make a claim?
In South Australia, the Inheritance (Family Provision) Act 1972 (SA) (‘the IFP Act’) provides that certain people are entitled to claim against a deceased estate, including but not limited to:
- Your spouse;
- Your children;
- Your grandchildren;
- Your parents, or your siblings, provided they can show they cared or contributed to your maintenance during your lifetime.
Who defends a claim?
The Executor or Administrator of an estate has a duty to administer the estate and would be named as a respondent to an IFP Act Claim.
The other beneficiaries would also be named as respondents to any claim, and potential claimants informed as interested parties. The beneficiaries would likely take an active role in defending the claim as they are defending their own entitlements under the will or intestacy.
What are the deadlines?
In relation to Inheritance Disputes, in South Australia, potential claimants have 6 months from the Grant of Probate or Letters of Administration within which to file and serve a claim under the IFP Act.
The Court has the discretion to hear an application made out of time, and would consider the circumstances in deciding whether to allow an extension of time, provided that the estate assets had not been fully distributed.
How do I know when probate has been granted?
You could ask the Executor or Administrator. If you are a beneficiary, you have a right to be kept informed.
You can also check the records on CourtSA, which would show whether an application has been submitted or whether Probate has already been granted.
Better yet, if you’re thinking about making a claim, seek legal advice and give notice of a potential claim early.
Why should the right to make an IFP Act claim against an estate exist?
“What’s the point of having a Will if it can be contested?”
The majority of estates are not contested and are distributed as the Will maker intended, or as provided by the laws of intestacy.
If there are valid concerns that someone has been left without adequate provision, it’s important that they have a right to argue their case.
The IFP Act aims “to assure to the family of a deceased person adequate provision out of his estate”.
What does the court consider?
If a court action is commenced and proceeds to trial, the Court would consider many factors, including but not limited to the deceased’s intentions, the financial circumstances of the applicant and health or lifestyle factors, the relationship between the deceased and the applicant and any disentitling conduct.
Where do I start?
If you are considering making a claim from an estate, our team at Eckermann Lawyers is here to help. Give us a call today on 8366 7900.