Contesting A Will in WA


In WA, eligible persons can Contest a Will by making what is called a Family Provision claim if they have been left without adequate provision from a deceased estate. Our contested wills team practices exclusively in Wills and Estates law and is here to guide you through the process to chieve the best possible outcome. If you are considering contesting a will, or require advice or representation we encourage you to call us on 1300 038 223 for a free initial case assessment. Almost all of our contested wills work in Western Australia is done on a No Win No Fee basis.

Grounds for contesting a will in WA

In Western Australia, a person may contest a Will if:

  • They are an eligible person; and
  • They believe they have been left without adequate provision.

In determining the claim, the court will consider the claimant’s financial position, their relationship with the deceased, the size of the estate and the deceased’s relationship with other persons who are eligible to make a claim. Adequate provision is complex and difficult to define as it varies with every unique case.

Contesting a will in WA

In order for a will to be contested in Western Australia pursuant to the Family Provision Act 1972, the deceased person must have been domiciled in Western Australia and passed away leaving assets in the state. The deceased person could also have held assets outside Western Australia.

In order to contest a will, an applicant must fall within a class of eligible persons to make a claim. These are set out in   the Family Provision Act 1972.

The claimant must prove that the deceased had a duty to provide for them in the will, but failed to make adequate provision for their welfare and advancement in life.

If negotiations are unsuccessful in resolving the matter, documents are filed in court to detail the claim which is being made by the applicant.

It is important that if you intend to make a claim that you do so before the estate assets are distributed. It is possible that the estate property may be sold or transferred and estate funds may be spent.

Eligible applicants

Pursuant to the Family Provision Act 1972, eligible applicants who can contest a will are:

  • a spouse or de facto
  • a person receiving or entitled to receive maintenance from the Deceased
  • a child of the deceased
  • a grandchild of the deceased
    • who was being maintained wholly or partly by the deceased immediately before the deceased’s death; or
    • who, at the date of the deceased’s death, was living and one of whose parents was a child of the deceased who had predeceased the deceased; or
    • who was born within 10 months after the deceased’s death and one of whose parents was a child of the deceased who had predeceased the deceased;
  • a stepchild of the deceased who was being maintained by the deceased immediately before the deceased’s death;
  • a stepchild of the deceased, if
    • the deceased received or was entitled to receive property from the estate of a parent of the stepchild, otherwise than as a creditor of that estate; and
    • the value of that property, at the time of the parent’s death, is greater than the prescribed amount;

How long do I have to contest a will?

If you are eligible to make a claim on someone’s estate for further provision, the Family Provision Act 1972 states that you must make a claim on the estate within six months of the grant of probate. A grant of probate is made to the executor if there are no questions regarding the validity of the will.

If you make a claim outside the six months period prescribed by the legislation, you must obtain leave of the court to make the application and provide the court with reasons for this delay. The court may not approve late applications for family provision and you should consult with a lawyer to discuss the circumstances of your case as soon as possible.

How do I get a copy of a will?

A common problem that people encounter when a loved one passes away is that they do not know if they have been included in the deceased person’s will. In Western Australia, the executor (that is the person responsible for administering the deceased’s estate) is under no obligation to provide any person with a copy of the deceased’s will.

It is only after a grant of probate has been made by the court that you can obtain a copy of the will. Once probate has been granted, the information about the will is available for you to obtain.

Who pays the fees?

Legal costs in family provision cases are at the discretion of the judge. Pursuant to Section 14(6) of the Family Provision Act 1972 (WA) the court is able to make any order as to costs in which it deems just. However, the court will usually order payment of a successful claimant’s costs.

In exercising their discretion regarding costs, the judge will consider whether or not the claimant had been able to establish that the testator failed to make adequate provision for their proper maintenance, welfare and advancement in life.

If the claimant’s case is not accepted by the court, then there will be no order for payment of the claimant’s costs. In fact, an unsuccessful claimant may be ordered to pay the costs of the executor defending the proceedings.

The cost of an Executor are usually paid out of the estate.

It is important to remember that each case will be determined on its own facts. This is why it is important to consult with a lawyer regarding your claim.

Intestacy

When a person dies intestate (without a will), their estate is distributed according to rules regarding the distribution of estates. In Western Australia, the Administration Act 1903 (WA) governs how a deceased’s estate is to be distributed on intestacy. An administrator applies to the Court for Administration of the estate. Once a grant of Letters of Administration has been made by the court, then the Administrator distributes the estate as follows:

  • Where the Deceased is survived by spouse or de facto, and children, then:
    • If the net value of the estate (excluding chattels) is under $50,000.00, the estate passes to spouse or de facto entirely.
    • If the net value of estate is over $50,000.00, the spouse or de facto is entitled to $50,000.00 plus one third of the remainder. The children are entitled to two thirds of the remainder. If a child of the deceased has died, then their children take their parents’ share in equal parts.
  • If the deceased is survived by spouse or de facto and one of the following specifically a parent, sibling or their child/ren, then:
    • If the net value of estate (excluding chattels) is under $75,000.00, the spouse or de facto is entitled to the whole estate.
    • If the net value of the estate is over $75,000.00, the spouse or de facto is entitled to $75,000.00 plus half of the remainder of the estate.
    • The other half will be distributed to the following:
      • If the value of half of the estate is under $6,000.00 and there is no surviving siblings or nephews/nieces then it goes to the parents in equal shares or to the surviving parent;
      • In any other case the parents are entitled to $6,000.00 plus half of the remainder. The other half will be distributed to the siblings of the intestate (or the siblings children if the sibling died before the deceased);
      • If there is no surviving parents, the siblings of the intestate and the children of the deceased siblings are entitled to the remaining half.
  • If the deceased is survived only by a spouse or de facto, the spouse or de facto receive the entire estate.
  • If the deceased is survived by children and no spouse or de facto, the estate passes to the children equally.
  • If the deceased has no spouse or de facto but has surviving parents and brother or sister, or a child of a brother or sister, then the first $6,000 will pass to the deceased’s parents. The balance of the estate will be divided half as to the parents and half as to the surviving siblings and nephews and nieces.
  • If the deceased is only survived by the parents, then the parents will take the whole estate.
  • If the deceased is only survived by siblings, then the siblings will take the whole estate equally.
  • If the deceased is only survived by grandparents, then the grandparents will take the whole estate.
  • If the deceased is only survived by uncles and aunts, then the deceased’s uncles and aunts will take the whole estate equally.
  • If the deceased is not survived by living relatives, then the estate will pass to the Crown.

What happens if the will is not valid?

In order for a will to be valid it must be in writing, witnessed correctly and dated. A court may in certain circumstances admit a document which does not meet all of these requirements.

The validity of a will may also be challenged on other grounds including:

  1. The lack of mental capacity. The cases usually arise when the deceased of the deceased had dementia or was of unsound mind at the time that instructions were provided for the preparation of the will. In order to challenge a will based on mental capacity, the person challenging the will must prove that the testator:
  2. Forgery. A will can be challenged if there is reason to believe it was forged or has been altered fraudulently.
  3. Undue influence. A will can be challenged if there is reason t believe the deceased was pressured, intimidated, tricked, manipulated or forced into making the will.

There are specific evidentiary matters which must support such claims regarding the validity of a will. You should consult a lawyer to discuss the circumstances of your case and the evidence that you have to support challenging the validity of a will.

What does the court consider when making a claim?

In WA, the court addresses claimc for further provision from a Deceased’s estate using a two-stage process set out in section 6 of the Family Provision Act 1972.

The first stage involves the determination of whether the bequest made to the claimant or the failure to provide for the claimant is such that the deceased has not made adequate provision from his or her estate for the proper maintenance, support, education or advancement in life of the claimant. This is sometimes referred to as the ‘jurisdictional question’.

The court must be satisfied that the deceased failed to make adequate provision for the claimant’s proper maintenance, support, education and advancement in life before it will continue to consider the claim. This question is assessed at the date of death of the deceased.

The second stage involves the exercise of the court’s discretion regarding the provision that the court thinks fit to be made out of the deceased’s estate for the proper maintenance, and advancement, of the claimant. This part of the assessment is made as at the date of the order meaning the court will consider what the claimant’s needs are at the date the order is made.

Waddingham v Burke

In the 2015 decision of Waddingham v Burke as Executor of the Will of Graham Scott Waddingham, the court addressed the matters to be considered when assessing whether the testator has made adequate provision for the claimant’s proper advancement:

The word ‘proper’ connotes something different from the word ‘adequate’. For example, a small sum may be sufficient for the ‘adequate’ maintenance etc of the claimant but, having regard to all the circumstances, including the size of the deceased’s estate and the lifestyle to which the claimant had become accustomed during the deceased’s lifetime, adequate provision may be wholly insufficient for his or her ‘proper’ maintenance. By contrast, a sum may be quite insufficient for the ‘adequate’ maintenance etc of the claimant, and nevertheless be sufficient for his or her maintenance etc on a scale that is ‘proper’ in all the circumstances

The determination of whether the provision, if any, made for the claimant is ‘adequate’ for his or her ‘proper’ maintenance etc involves not only a scrutiny of the requirements of the claimant for maintenance etc that were reasonably foreseeable by the deceased, but also an examination of the totality of the relationship between the claimant and the deceased.

‘Adequate’ is concerned with the quantum, whereas ‘proper’ prescribes the standard, of maintenance, etc. The propriety of the provision, if any, for the claimant is to be assessed by reference to all the circumstances including contemporary accepted community standards.

The facts of each case are different and no two cases are exactly the same. For further discussion regarding your question, contact a lawyer to discuss the details.

Can grandchildren contest a will?

The law recognises the principle of testamentary freedom. This means that a person is free to leave the assets they have at the date of their death to the person or persons whom they wish. However, the law recognises that a testator has a moral obligation to provide for certain persons and the states in Australia have legislated to set out a list of eligible persons who can make a claim on a deceased’s estate if they have been left out of a will or have been left without adequate provision in the will.

In order to make a claim for family provision in Western Australia, a claimant must fall within a category of eligible persons pursuant to the Family Provision Act 1972. Section 7 of the Act specifies the persons who are entitled to make a claim on the deceased’s estate for further provision. The categories of people do include a grandchild of the deceased in section 7 (d) of the Act provided the relationship meets certain conditions. The legislation states that an eligible person includes:

  • a grandchild of the deceased —
    • who was being maintained wholly or partly by the deceased immediately before the deceased’s death; or
    • who, at the date of the deceased’s death, was living and one of whose parents was a child of the deceased who had predeceased the deceased; or
    • who was born within 10 months after the deceased’s death and one of whose parents was a child of the deceased who had predeceased the deceased;

Accordingly, a grandchild can make a claim provided that:

  • they were dependent on their grandparent immediately before their grandparent’s passing;
  • they are alive at the time their grandparent died and their mother or father (who was a child of the deceased) has passed away before their grandparent;
  • the claimant is born within 10 months after their grandparent’s death and their parent was a child of the deceased There are time limits for making claims so it is important that you speak with a lawyer to discuss your case to determine if you fit within the class of eligible persons to make a claim on a grandparent’s estate.

There are time limits for making claims so it is important that you speak with a lawyer to discuss your case to determine if you fit within the class of eligible persons to make a claim on a grandparent’s estate.

Can a niece or nephew contest a will?

The law is particular about the persons who can contest the will of the deceased person if they have been left out of the will. The ability to contest a deceased’s will is not open to all relatives and friends. This is because the law recognises that a person should be able to leave the assets which they have accumulated during their lifetime to whomever they please.

While the value of testamentary freedom is accepted, the law does recognise that a testator has a moral obligation to make adequate provision for certain persons which the community expects for them to do so. The various states in Australia have set out different rules about who is ‘an eligible person’ to make a claim on the deceased’s estate. These rules about eligibility to contest a will are different in each state.

In Western Australia, the Family Provision Act 1972, is the legislation which addresses the question about who is an eligible person to make a claim. Sections 7 of the Act states that the people who can make a claim on the deceased’s estate include a spouse, a former partner who is entitled to maintenance from the deceased, a child including one who is born 10 months after the deceased’s death, a grandchild in certain circumstances, a stepchild in certain circumstances and a parent of the deceased.

These categories do not include a nephew or niece. Unlike in other states, there are no categories in Western Australia which a nephew or niece will fall under to be considered an eligible applicant to contest a will.

Thus, because nephews and nieces are not included in the legislation they cannot make a claim on their aunt or uncle’s estate. This is the case even if the nephew or niece had a close relationship with the deceased during their lifetime and was dependant on them.

If you require legal assistance, advice or representation in a contested wills matter 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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