This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (state and federal industrial tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Challenging or Contesting a Will in Western Australia


There are various ways of challenging or contesting a will in Western Australia. When a person contests a will, they are claiming that the provisions of the will are unfair, usually because they do not make adequate provision for one or more family members of the deceased. When a person challenges a will, they are claiming that the will is not valid. This article outlines what is involved in challenging or contesting a will in WA.

Challenging a will

There are a number of reasons why family members, dependents or beneficiaries may have doubts that a will is valid. These include evidence that the testator did not have the capacity to make the will, because they believe the will was made under duress or because someone exerted undue influence over the testator.

When a person suspects that a will is invalid and that probate should not be granted, they should seek legal advice as soon as possible about lodging a caveat with the Probate Registry of the Supreme Court to prevent a grant of probate from being made without prior notification. The Supreme Court may then require the will to be proven in solemn form. This is a hearing before a Judge or Master. The person objecting to probate being granted will need to adduce evidence as to the basis for their belief that the will is invalid. This may be evidence of the testator’s lack of testamentary capacity, or evidence of duress, coercion or undue influence exercised over the testator.

Once probate is granted for a Will, there is a presumption is that the Will is a valid document. The executor may then administer the Estate in accordance with the will’s instructions. After this has occurred, it is very difficult to revoke the will. However, if you are a beneficiary or a potential beneficiary with questions about the administration of the Estate and the fairness of that process, you should discuss with a solicitor the possibility of recourse via the Administration Act 1903 or the Trustees Act 1962.

Contesting a will

Family members of a deceased will often consider contesting a Will because they believe that the will is unfair, and that the testator failed to make provision for them under the will. The Family Provision Act, enacted in 1972, allows certain relatives, dependants and partners of a deceased person to apply to the Supreme Court for an order for further provision from the deceased’s estate.

A person must bring an application for further provision within six months of the grant of probate. This is a very strict time limit and if an application is filed outside this time frame, the applicant must first apply for leave from the Supreme Court. The applicant must be an “eligible person” under section 7 of the Act in order to bring a Family Provision Claim. This is known as the jurisdictional test.

The second test is the “adequacy test”, where the court determines whether or not the deceased made adequate provision for the applicant under the Will. This test involves the court considering multiple factors including the claimant’s income, lifestyle, medical needs, educational requirements, the closeness of their relationship with the deceased, and whether or not there was a relationship of financial dependence or interdependence between the claimant and the deceased. The court will then weigh up these considerations against the interests of all the other beneficiaries under the will and any claim being made on the estate. Crucially, the court will consider the size and the nature of the estate and whether it is sufficient to meet all competing claims. If the court determines that the provision was inadequate, it may make an order for further provision as it sees fit.

Vigolo and Bostin

The leading case in Australia regarding the principles underlying family provision claims is the 2005 decision Vigolo and Bostin, which originated in Western Australia and was appealed in the High Court.  In that case, the High Court was asked to consider whether the testator had a “moral obligation” to provide for the applicant. The court concluded that a person cannot bring a claim based on a moral obligation alone, and they must pass the “adequacy test” which requires the applicant to demonstrate that they were left with inadequate provision.

In recent times, courts have discussed the possibility that a testator does have a moral obligation to provide for certain family members and that there are community expectations about what provision a wise and just testator ought to have made. A recent West Australian case which touches on this is Mead v Lemon [2015] WASC 0071.

The court has a wide and unfettered discretion in determining what it thinks is adequate provision for a particular person making a Family Provision Claim, depending on the circumstances of the individual case.

If you require legal advice or representation in relation to challenging or contesting a will or in any other legal matter, please contact Armstrong Legal.

WHERE TO NEXT?

Have you been left out of a Will or treated unfairly? 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.

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