Contesting a Will in South Australia: Who Can Claim, and How Long They Have

Two conversations arrive in a wills and estates practice with some regularity. In the first, someone has read a will and found that a parent left them nothing, or left them markedly less than a sibling. In the second, an executor has a letter from a lawyer acting for a relative and wants to know whether they can simply distribute the estate and be done with it.

Both conversations changed on 1 January 2025, when the Succession Act 2023 (SA) commenced. That Act repealed and replaced three pieces of legislation at once — the Wills Act 1936, the Administration and Probate Act 1919 and the Inheritance (Family Provision) Act 1972 — and rewrote the rules on family provision along the way. It is the most significant change to South Australian succession law in decades, and the direction of travel is clear: it is now harder to contest a will, and the will-maker's own reasoning carries more weight than it used to.

Two Different Things Called "Contesting a Will"

Before anything else, it is worth separating two claims that are routinely confused, because they have different tests, different evidence and different outcomes.

Challenging the validity of a will is an attack on the document itself. The argument is that the will should not stand at all — because the will-maker lacked testamentary capacity, because they did not know and approve its contents, because they were unduly influenced, because the will was not properly executed, or because it is a forgery. If the challenge succeeds, the will fails and an earlier will, or the intestacy rules, apply instead.

A family provision claim accepts that the will is valid and asks the court to alter its effect. The argument is not that the document is defective but that the deceased failed to make adequate provision for the proper maintenance, education or advancement of someone they should have provided for. This is the claim that Part 6 of the Succession Act governs, and it is what most people mean when they say they want to contest a will.

Who Can Make a Family Provision Claim

Section 115(1) sets out the categories of eligible applicant. The list is narrower and more conditional than the one it replaced, and the conditions are where most claims now succeed or fail:

• A spouse or domestic partner of the deceased.
• A former spouse or former domestic partner, subject to the exceptions in section 115(2).
• A child of the deceased.
• A stepchild, but only where the criteria in sections 115(3) and (4) are met.
• A grandchild, in the circumstances set out in section 115(5).
• A parent of the deceased who cared for, or contributed to the maintenance of, the deceased — section 115(6).
• A sibling of the deceased on the same footing — section 115(7).

The tightening is deliberate. A stepchild now generally needs to show something more than the relationship itself: that they are disabled and significantly vulnerable, that they were dependent on the deceased, that they cared for or contributed to the maintenance of the deceased, or that they — or assets built up by their own parent — substantially contributed to the estate. A stepchild who is still a minor can also qualify if the deceased was maintaining them. Parents and siblings must have cared for the deceased or contributed to their maintenance, tested immediately before death or, if the deceased died in residential aged care, immediately before they entered it; a parent can also qualify if the deceased was maintaining them. Adult children who were not dependent and can point to no particular need are in a materially weaker position than they would have been a decade ago.

The Six-Month Clock, and What It Runs From

This is the detail that causes the most damage, because the intuitive answer is wrong.

Under section 118(1), an application must be made within six months after the grant of probate or letters of administration. Not six months from the date of death. Not six months from when you found out about the will. Six months from the date the grant is made.

The consequences run in both directions. A person who spends four months grieving and then two months deciding may find that the grant issued early and the window has closed. Equally, where no grant has been taken out, the clock has not started at all — the deceased may have died three years ago and the period may not yet have begun.

The court may extend the time under section 118(2), but an application for an extension must be made before the final distribution of the estate (section 118(4)), and anything distributed before that application is made is not disturbed (section 118(5)). Once assets have been distributed to beneficiaries, the ability to obtain an order shrinks quickly and can disappear altogether. If you think you may have a claim, the priority is to find out whether a grant has been made and when, and to notify the executor promptly. Our guide to probate in South Australia explains how and when a grant is obtained.

What the Court Now Weighs

The most consequential change is in section 116(2), which sets out what the court must consider. The list is headed by the wishes of the deceased, and that placement is not accidental: the testator's intention is now a primary consideration rather than one factor among many.

The court also considers any evidence of the deceased's reasons for the provision made in the will, the applicant's vulnerability and dependence, the applicant's contributions to the estate, the applicant's character and conduct, and any other relevant matter. The underlying test remains whether the deceased failed to provide adequately for the applicant's proper maintenance, education or advancement.

For anyone making a will, this is the practical takeaway. A clear, contemporaneous record of why an estate has been divided as it has — why one child received more, why another received nothing, what was given during the will-maker's lifetime — is now considerably more valuable than it once was. It does not make a will claim-proof, but it puts the deceased's reasoning squarely in front of the court in their own words.

What Is In the Estate, and What Is Not

A family provision order operates on the deceased's estate. South Australia has no equivalent of the "notional estate" regime that exists in New South Wales, under which a court can claw back assets that passed outside the will.

That distinction decides a great many claims before they start. Property held as joint tenants passes to the surviving joint tenant by survivorship and does not form part of the estate. Superannuation is not an estate asset unless it is paid to the estate, and where a binding death benefit nomination directs it elsewhere it generally stays there. Assets held in a family trust or a company are owned by the trustee or the company, not the deceased. Life insurance paid to a named beneficiary is outside the estate as well.

It is entirely possible for a substantial person to die with a modest estate and for a claim against that estate to be barely worth bringing. It is equally possible for an estate plan built around joint ownership and binding nominations to leave very little exposed. That is a legitimate planning consideration, and it is one of the reasons the structure of an estate plan matters as much as the wording of the will — a theme we return to in five things your will must do.

If You Are the Executor

An executor who distributes an estate in the face of a known or threatened claim can be personally exposed. The safe course is to hold distribution until the six-month period has expired, or until any notified claim is resolved, and to take advice as soon as a claim is intimated rather than after funds have moved.

Executors should also resist the assumption that a claim must be defended to judgment. Most family provision claims settle, often at mediation, and the cost of running one to trial can consume a meaningful share of a modest estate. Nor is it safe to assume costs will simply come out of the estate: courts have become notably less willing to treat estate funds as a general indemnity for unsuccessful claims. Our guide for executors sets out the wider administration obligations.

How Zed Legal Can Help

Our wills and estates practice acts for claimants, executors and beneficiaries in South Australian estate disputes. For a potential claimant, the first questions are eligibility under section 115, whether a grant has been made and when, and what the estate actually holds — often that assessment can be made quickly and can save a great deal of expense. For executors, we advise on responding to a claim, protecting your position before distribution, and resolving matters at mediation where that serves the estate. And for anyone making a will, we draft with an eye to the risk: clear reasoning, sound structure, and provision that reflects what you actually intend. If you have not yet made a will at all, our article on dying without a will in South Australia sets out what happens by default.

Time limits in this area are unforgiving. If a grant has been made, contact us at hello@zed.legal sooner rather than later.

This article is general information only and current as at October 2026. It is not legal advice and does not take your circumstances into account. Family provision claims under Part 6 of the Succession Act 2023 (SA) depend heavily on the individual facts, and which legislative regime applies to a particular estate can turn on transitional provisions. Please obtain advice specific to your situation before acting or allowing time to run.