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Challenging a Will in WA


Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Adelaide: (08) 8410 0055
Perth: (08) 9321 5505

Alun Hill

All will validity challenges must be commenced in the Supreme Court of Western Australia.

If you are unsure of whether Probate for a will has been applied for, it is recommended that a search of the Probate Records of the Supreme Court Registry be conducted. A simple search request form can be downloaded from the website of the Supreme Court of Western Australia. Once the form is completed, it can be lodged with the Probate Registry, together with the requisite search fee (please note, Supreme Court fees change on an annual basis and should be checked prior to making any search requests). We can also undertake searches of the Probate Registry on your behalf.

In most cases, a search result will be provided to you within 5 business days, subject to any possible delays in Court administration.

If a Probate application has not been filed, you can lodge a caveat. A caveat can serve a dual purpose in that:

  • you will be notified when Probate is applied for. A caveat may be removed immediately, if you simply wish to be notified of the Probate application; or
  • you dispute the validity of the Will.

Unlike other Court proceedings, references to identification of the parties in a Western Australian Probate Caveat proceeding can appear to be confusing. A person seeking to uphold the validity of a Will (the Executor) is called the Plaintiff. The Plaintiff seeks to prove the validity of the Will as against the caveat. The person lodging the caveat (the Caveator), is named as the Defendant, as they seek to uphold the caveat.

If the intention of lodging the caveat is to challenge the validity of the Will, the Court will then require the parties to file affidavits in support of their respective positions. The Court will then arrange for a judicial case conference to take place, in the hope that the matter can be resolved between the parties through mediation. Should the parties fail to reach a settlement at mediation, the matter will progress to a hearing for determination by the Court Registrar.

If you think you need help, or to discuss whether you have a case, please call us on 1300 168 676 for a free case assessment.

HOW TO CHALLENGE A WILL IN WA

A will can be challenged regarding its validity, prior to a grant of probate being obtained by the executor. Under Section 63 of the Administration Act 1903 (WA), a person can lodge a caveat with the Principal Registrar of the Supreme Court of Western Australia, preventing a Grant of Probate being made.

A caveat can be lodged by a person who has an interest in an estate (otherwise known as the "Caveator"). That person may be:

  • a beneficiary under the current will;
  • a beneficiary to an earlier will of the Deceased;
  • a beneficiary by way of intestacy (next of kin).

A caveat must comply with the formal requirements of Rule 33 of Non Contentious Probate Rules 1967 (WA) and must state the nature of the interest of the Caveator.

Once a caveat is lodged, it will remain in force for a period of 6 months, unless it is challenged by way of an application lodged by the person seeking to obtain a grant of probate. When an application is lodged by a person seeking to obtain a grant of probate, the caveator is given notice of the application. The parties are then required to present their cases to the Registrar for a determination in relation to the validity of the Will.

The reasons for which a caveat may be lodged, include, but are not limited to:

  • The testator (Willmaker) lacked mental capacity to make a will and understand the consequences arising from it. Medical evidence of the incapacity will be required to support an allegation of this nature;
  • There was fraud involved regarding the production and execution of the Will;
  • The Willmaker lacked knowledge and did not approve the contents of the Will;
  • There was undue influence or duress involved in the making of the Will. It is not enough to simply allege that undue influence and or duress was exerted on the testator by the executor or another party. Evidence must be provided to support a claim of this nature. Such claims are often exceptionally difficult to prove.

WHO CAN CHALLENGE A WILL IN WA

In order to Challenge a Will in Western Australia, the applicant may be a family member, dependent, or a beneficiary named in a previous Will

If you suspect that the Will of the testator may not be valid for any vitiating factors including lack of testamentary capacity, duress, undue influence or mistake or if you think that there are substantive problems with the will such as how it was signed you should consult with a lawyer promptly.

Once a will is admitted into probate (the process of proving and registering the Will in the Supreme Court), the Executor can commence the process of administering the estate. This may well lead to considerable difficulty or your inability to return the distributed assets if you have a claim on the estate.

GROUNDS/REASONS FOR CHALLENGING A WILL

There are a number of reasons for Challenging the Validity of a Will. The most common Challenges to Wills arise in circumstances where the deceased:

  • Lacked testamentary capacity
  • Did not have testamentary intent at the time that the will was made;
  • Was subject to duress, fraudulent circumstances or undue influence;
  • Made a mistake;
  • Did not have knowledge and approval of the contents of the document;
  • Revoked the Will;

In other circumstances which are becoming more common, the deceased may have made an agreement regarding a mutual will which creates certain rights and obligations regarding the deceased's final testamentary document.

In order to be considered valid, a Will must meet certain requirements which are set out in the Wills Act 1970 (WA). These include the age of the will maker, the existence of a document , that the Will has not been revoked, that the Will is made after marriage or divorce of the testator and that the document is intended to operate after the death of the testator.

In certain circumstances, the Court has the discretion to dispense with the formal validity requirements. This is assessed on the circumstances of the case and the evidence submitted to the Court to support such an application.

Challenging the Validity of a Will must be supported by strong evidence. It is important to discuss your case with a lawyer to assess the details of your matter and the merits of your claim.

COSTS OF CHALLENGING A WILL

The cost of challenging a will in Western Australia will depend on the outcome of the case and the time spent on your matter. Generally, an order for payment of costs can be obtained by the successful party. This sum will not necessarily cover all of your legal costs and can be referred to as party/party costs or ordinary costs.

The amount which must be paid to the successful party can either be determined by the Court or by agreement between the parties. If the parties are unable to agree regarding the costs which must be paid to the successful party, then an application can be made for cost assessment.

If you are unsuccessful, then you might be liable for the other parties’ costs as well as your own. This means that you have to pay the fees of your opponent as agreed or assessed as well as your own legal fees.

Pursuant to the Legal Profession Act 2008 (WA), your lawyer will discuss with you how the costs in your case will be calculated so that you are aware at the outset of the matter of the fees which you may recover if you win or the fees that you will pay if you lose your case.

CHALLENGING AN EXECUTOR OF A WILL

If you are named as an executor, or administrator of an estate, you are responsible to the beneficiaries of that estate for the management of the estate's assets. This is known as a "fiduciary duty" which applies to trustees as well.

If an executor fails to take reasonable care in managing an estate which results in financial loss to the beneficiaries of an estate, the beneficiaries may be able to sue the executor for those losses. Beneficiaries may also sue the executor for losses which may include:

  • Lost profits for poorly, or negligently managed asset investments;
  • Failure of a trustee to deal with / not deal with a particular estate asset;
  • Failure to pay any interest, or account for any interest payable to the estate or beneficiaries;
  • Failing to act on proper advice given to the executor by a lawyer, accountant or professional financial advisor, to avoid a possible financial loss;
  • Failing to maintain proper accounting records showing the true financial position of the estate;
  • All of the above which can result in the removal of the executor / trustee. The Court may then appoint an independent admnistrator.

Administration of an estate usually takes place in the six months period after Probate, or Letters of Administration, have been granted to the executor, or administrator. After the expiry of the six month administration period, the executor, or administrator, becomes the "trustee" of any assets which have not yet been distributed. This includes any assets held under a trust created by a Will, for beneficiaries. In this case, a trustees' responsibility continues until the end of the trust. This will include preparing tax returns for the trust and maintaining accounting records.

In some cases, an executor, administrator or trustee may be "unable", "unfit" or choose not to manage an estate or trust. In these cases, it is reasonably straight forward to remove a trustee from an estate, with sufficient evidence in support of a removal action.

If you have been named, or appointed, as an executor, trustee or administrator of a trust or estate and you are unsure of your duties and responsibilities, call us to discuss how we can help you.

HOW LONG CAN A WILL BE CHALLENGED (TIME LIMITS)

The time in which to challenge the validity of a will must be made by either:

  • Lodgment of a caveat before the application for a Grant of Probate; or
  • At any time prior to Probate being granted by the Court, but after lodgment of the Probate application by the executor.

The grounds for challenging the validity of a Will are like most other Australian States in that:

  • The Deceased lacked mental capacity at the time of making their will (i.e - most likely suffering from Alzheimers or Dementia at the time of signing the Will);
  • The Deceased did not know or, or approve, the contents of their will;
  • The Deceased was subjected to undue influence by friends / family at the time of writing and signing their will;
  • The will was forged;
  • The will was not prepared and signed in accordance with the Wills Act 1970 (WA);
  • The Deceased did not intend the lodged Will to be their last Will ("revocation")

A caveat lodged against the Probate application lasts for 6 months, but can be extended on further application to the Court with reasons in support of that extension.

A person lodging a caveat against a Grant of Probate must have a "real and relevant interest" in the estate. This is usually a beneficiary or a family member. However, this interest is different from someone intending to make a claim for provision from the Deceased's estate. The right to make a claim for provision is not a caveatable interest. The Probate Office of the Supreme Court will reject caveats lodged on that basis.

A caveat cannot be lodged against Probate where a beneficiary only has interest in the remainder (or "residue") of the estate. A caveat cannot be lodged against the title of a property belonging to the Deceased by a beneficiary, particularly if the proceeds of the sale of the Deceased's property falls into the residue of the estate and the beneficiary only has an entitlement to the residue.

A person may only lodge a caveat against the property of the Deceased where the Deceased has taken a mortgage, charge or loan from that person which is registered against the title of that property for security of that loan.

Any application to revoke, or challenge the validity of, a will must be acted upon quickly. Applications are filed with the Supreme Court of Western Australia and require significant detail as to the grounds for lodging a caveat.

Challenges to a Will for reasons of lack of capacity or revocation are not without their difficulties. Please call us on 1300 168 676 if you have concerns regarding any of these issues in relation to challenging a Will.

CHALLENGING THE VALIDITY OF A WILL

In Western Australia, whether a Will is valid depends on whether or not the Will complies with certain criteria or requirements pursuant to the Wills Act 1970 (WA).

According to section 8 of the Wills Act, a Will must be in writing and must be signed by the testator (the person making the Will) in the presence of 2 other witnesses who sign the Will.

There are a number of critical requirements for a valid Will including that:

  • The person making the Will is over the age of 18 years old (section 7);
  • The Will is documented (section 32);
  • The Will is made after marriage, unless it was specifically made in contemplation of marriage otherwise it is considered to have been revoked (section 14);
  • The ending of a marriage revokes a Will unless the contrary intention appears in the document (section 14A);
  • The Will is intended to operate after the death of the will maker;
  • The Will is made in the absence of vitiating factors such as testamentary capacity undue influence, fraud, mistake and duress.

Consideration should also be given to Section 20 of the Wills Act which sets out that “a will is taken to be properly executed if its execution conforms to the internal law in force in the place:

  • where it was executed; or
  • that was the testator’s domicile or habitual residence, either at the time the will was executed, or at the testator’s death; or
  • of which the testator was a national, either at the date of execution of the will, or at the testator’s death."

This means that a Court will consider the formal requirements for execution of the Will in the place that it was signed by the testator.

To Challenge the Validity of a Will in WA, the applicant must demonstrate evidence of any of the above circumstances. Where claims are made of vitiating factors such as lack of testamentary capacity or undue influence strong medical and other evidence must be submitted to the Court.

It is important to consult with a lawyer to discuss your case.

CHALLENGING CAVEATS:

If you are an Executor of a Will, you may be faced with your probate application being halted by a caveat.

A caveat is a written notice filed in Court by a person that has concerns about the validity of a Will.

The Probate Registry of the Supreme Court will notify you if a caveat has been lodged on the estate in which you are applying for probate. You then have one (1) month in which to apply to the Court for an Order that the caveat be removed or commence proceedings to prove the Will.

Ultimately, the person filing the caveat must provide some material to show that their objection to the Will is based upon a genuine doubt and that there are circumstances which the Court might regard as warranting some investigation.

However, sometimes this is not the case and the main reasons you can challenge a caveat and apply for its removal are as follows:

  • A person has filed a caveat who does not have an interest in the estate, it must be a beneficiary or person whom would receive an entitlement under an earlier Will or under an intestacy (if the Deceased died without a Will).
  • The grounds supporting the caveat have no proper basis. The following are some examples of when the grounds for a caveat have successfully been challenged:
    • Typographical error in the Will. For example, the Deceased’s address in the Will being incorrect does not mean that the Deceased could not have carefully reviewed his Will nor does it mean that the Deceased did not know and approve of its content.
    • The fact the Deceased may have at some time indicated that he/she would leave provision for a person and then does not, cannot be considered that he did not know, understand and approve the contents of a Will.
    • Giving an explanation in the Will as to why nothing was left to Deceased’s sons, but no explanation as to why nothing was left to the daughters. It was argued the Deceased thought he was leaving something to his daughters. This does not meant the Deceased did not have capacity.
    • The person allegedly exercising undue influence had power enabling him/her to overbear the Will of the Deceased. It must actually be shown that a person had exercised that power and the signing of the Will was obtained that way.
    • If fraud is alleged, then there must be material in the sense that it had operation on the mind of the testator with respect to the making of his Will.

Please contact Armstrong Legal if your application for probate is being delayed by the filing of a caveat.



where to next?

Have you been left without adequate provision from a deceased estate? We offer a free assessment of your case and a no win no fee policy. We have a specialist team that deals only in Wills & Estates servicing NSW, VIC, QLD, ACT, SA & WA. The law relating to Wills and Estates can often be complex and confusing so we encourage you to make contact with our team.

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Adelaide: (08) 8410 0055
Perth: (08) 9321 5505