Worried about legal costs for challenging a Will? A guide for claimants in South Australia

Worried about legal costs for challenging a Will in South Australia? Discover eligibility under the Succession Act 2023 (SA), cost risks like security for costs, and how ADLV Law guides claimants to fair outcomes without unnecessary risk.

If you’ve been left out of a Will or believe the provision made for you is inadequate, you may be wondering whether you can apply for a greater share of the estate. You may also be worried about what it could cost you to make a claim.

Under South Australia’s new Succession Act 2023 (SA) (the Act), people in your position are given a clearer legal pathway to seek what may be a fairer outcome. But the Act also introduces new provisions around legal costs, including when a court may order a claimant to provide security for costs.

This article outlines who can make a claim, what the law says about costs, and how we can support you in making an informed decision.

For more information about the key changes in succession law in South Australia read this article.

Who can make a claim?

Under Section 115 of the Act, the following people may apply for provision (or increased provision) from a deceased person’s estate:

A spouse or former spouse of the deceased;
A domestic partner or former domestic partner;
A child of the deceased;
A stepchild of the deceased;
A grandchild of the deceased;
A parent of the deceased; or
A sibling of the deceased.

Being eligible means the court will consider your application, but it does not guarantee success. To obtain an order, the court must be satisfied that:

The deceased did not make adequate provision for your proper maintenance, education or advancement in life; and
It is appropriate in all the circumstances for the court to make an order.

The court will look at many factors, including your financial position, your relationship with the deceased, any competing claims, and the size of the estate.

Not sure if your claim has merit? We can review your circumstances and provide on advice for next steps, call us on 1300 654 590 or email us.

What does the law say about costs?

Under Section 119(8) of the Act, the Court has the discretion to determine how legal costs should be paid in family provision matters. This includes whether the costs should come out of the estate or be paid by one or more of the parties personally.

In many cases, if a claim is successful (or at least reasonable) the Court may order that the claimant’s legal costs be paid from the estate. However, this is not guaranteed. The Court considers the conduct of the parties, the strength of the claim, and whether it was reasonable to pursue it through litigation.

On the other hand, if the Court finds that a claim was unfounded, exaggerated, or pursued in bad faith, the claimant may be ordered to pay their own costs, or even the legal costs of the executor or other parties.

What this means is: cost consequences can apply even if your claim was eligible, particularly if the claim was poorly prepared or unreasonably pursued. Essentially, the court makes the orders it considers ‘just’.

Section 117 of the Act introduces a new discretion for the court to order a party to provide security for costs. This means a claimant may be required to guarantee payment of potential legal costs if the court finds that:

The party’s claim for provision may be without merit; and
The party is unwilling to negotiate a settlement.

Security for costs is a legal safeguard used in civil litigation. It means that one party (usually the one bringing the claim) might be ordered by the court to pay money upfront, or provide some form of financial guarantee, to cover the other side’s legal costs in case they lose the case. It’s not meant to block someone from going to court, but to make sure respondents aren’t unfairly left out of pocket defending claims that may not have merit.

What this means for you

It’s natural to worry about legal costs when considering a challenge to a Will, but the law provides safeguards to ensure that claims are treated fairly.

Under the Act, there are two key ways costs can affect you:

Security for costs (Section 117): If your claim appears to lack merit and you are unwilling to engage in reasonable negotiations, the Court may require you to pay money upfront (or provide some other guarantee) to cover the other party’s legal costs in case you lose. This is aimed at discouraging speculative or vexatious claims, not genuine ones.
General costs orders (Section 119(8)): At the end of a case, the Court can decide who should pay the legal costs. Sometimes the estate will cover these expenses. Other times, the Court may order that each party bears their own costs, or that one party pays another’s costs, depending on the circumstances.

In practical terms, this means:

If you bring a genuine claim, have a clear connection to the deceased, demonstrate financial need, and participate in the process reasonably, the Court is unlikely to penalise you with a harsh costs order, even if the outcome isn’t entirely in your favour.

However, if your claim is unfounded, exaggerated, or you act unreasonably during the process (e.g. refusing to negotiate), there is a real risk you could be ordered to pay legal costs, possibly your own and someone else’s.

How we can help

At ADLV Law, we take a clear, careful approach to family provision claims. We help clients:

Understand whether they are eligible to apply;
Evaluate whether their claim is likely to be successful;
Assess the risks associated with legal costs; and
Navigate the court process with integrity and confidence.

We may also be able to assist in resolving matters through negotiation or mediation, which can significantly reduce the need for court proceedings and legal expenses.

You don’t have to decide alone

If you believe you were unfairly left out of a Will, or were left too little, contact us today. We’ll give you honest, practical advice about your legal rights, your options, and the possible costs involved in challenging a Will.

Let us help you pursue a fair outcome without unnecessary risk. Speak to one of our experienced lawyers today on 1300 654 590  or  email us.

The information contained in this post is current at the date of editing – 12 May 2026.

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