Can A Beneficiary Contest A Will? (WA)
An eligible beneficiary can contest a will in Western Australia if they have not received adequate provision from a testator. Generally, an eligible person includes the testator’s relations and those who were financially dependent on the deceased. A beneficiary can only contest a will in WA if the deceased was a resident of the state or owned real estate within the borders. The contestation is made through a Family Provision Claim pursuant to the Family Provision Act 1972. This article explores the process of how a beneficiary can contest a will in WA.
When a beneficiary has reservations about the will of a deceased, the first step is for them to work out whether they need to challenge or contest the will. A beneficiary can challenge a will if there are problems with the document itself because it is invalid, fraudulent, outdated, was written under duress or by someone who lacked testamentary capacity. Alternatively, if a beneficiary has no issue with the document itself, but believes that the testator has not made adequate provision for them, then they should legally contest a will.
Someone intending to file a claim against an estate should consult a solicitor immediately to discuss the options, and if possible, file a caveat with the Probate Registry to prevent a grant of probate from being ordered by the court. The next step is for the two parties (the beneficiary and the executor) to file affidavits outlining their relative positions, and then attempt to reach an agreement at mediation. Should the two parties fail to agree at mediation, the case will be referred to the Court Registrar for a hearing.
What Is Adequate Provision?
The Registrar of the WA Supreme Court will assess whether the testator made reasonable and adequate provision for the welfare and maintenance of the beneficiary. Adequate provision is a difficult concept to define and will be assessed on a case-by-case basis.
The court will review the claimant’s financial circumstances, in light of the financial needs of the other beneficiaries, and the overall size of the estate. The claimant’s relationship with the deceased is also relevant, including any support that either party gave to the other, and any material contribution that the claimant made towards the deceased’s estate (such as working in a family business).
Who Can Contest A Will In WA?
The list of those who are legally eligible to make a Family Provision Claim include:
- The de facto partner or spouse of the deceased;
- An adopted or biological child of the deceased;
- Someone entitled to, or already receiving, maintenance from the deceased.
Two other categories of people can contest a will under specific circumstances:
- A grandchild of the deceased can contest a will if the deceased was at least partly maintaining the grandchild prior to their death. A grandchild (either living or born within 10 months of the deceased’s death) can also make a claim in place of their parent who has passed away.
- A stepchild of the deceased can contest a will if they were receiving maintenance from the deceased immediately prior to the testator’s death. A stepchild is also entitled to claim if the testator had previously received property from the estate of a parent of the stepchild (apart from as a creditor), provided that the property’s value on the date of the parent’s death is more than $460,000.
Can A Beneficiary Contest A Will: Time Limits
A beneficiary must contest a will within certain time frames, namely within six months of probate being granted. The beneficiary should notify the executor that they intend to make a claim as soon as possible after the death of the testator. The court may still consider a late claim if the applicant can give adequate justification for the delayed application, but if the executor has already distributed the estate it will be difficult to reacquire the assets for redistribution. As such, the court will take this into consideration when judging whether a delayed claim should be approved.
Who Pays The Costs Of a Beneficiary Contesting A Will?
There are costs and fees associated with contesting a will, some of which are outlaid at the outset by the individual parties. The court has the authority to decide who ultimately pays the costs associated with a Family Provision Claim. The standard practice is for the costs of a successful claimant to be reimbursed by the estate. Alternatively, if the claim is denied, then the court will make no order for the payment of the claimant’s costs, and in fact, the claimant may be ordered to reimburse the costs associated with defending the estate.
If you are the beneficiary of a deceased estate in WA and want to contest the provisions in the will, the contested wills team at Armstrong Legal can help. We can also assist a testator with strategies to reduce the likelihood of successful Family Provision Claims. Please call our offices on 1300 038 223 or contact our team to make an appointment.