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Can A Friend Contest A Will? (WA)

When someone passes away leaving a will, it is not unusual for there to be a dispute over the contents of the will. In Western Australia, only a select list of people can make a Family Provision Claim to contest a will. This article examines whether a friend is an eligible person to inherit from a deceased estate and whether a friend can contest a will in Western Australia.

Can A Friend Inherit In Western Australia?

Succession rules in the Administration Act 1903 and the Family Provision Act 1972 govern deceased estates in Western Australia. When a deceased dies without making a will, only their spouse, children, parents, and siblings have a chance to inherit from the deceased estate. A friend is not eligible to inherit from an intestate estate in Western Australia.

Western Australia laws do allow a will-maker (or testator) to leave their assets as they think fit. In this way, a testator can leave their entire estate to a friend and completely “disinherit” close family members. However, these laws permit the immediate family to apply to overturn an unreasonable will. This legislative provision reflects Australian public policy that a testator must be reasonable and provide posthumously for their dependents.

Who Can Contest A Will In Western Australia?

Only certain people are eligible to “contest” a testator’s last wishes in Western Australia. Someone could contest a will if the testator failed to make appropriate provisions for their welfare and advancement in life. Those entitled to provision include the testator’s spouse (married and de facto) and the testator’s children. A testator may have also owed other people a moral duty of maintenance. For instance, someone receiving or entitled to receive maintenance from the deceased can contest a will. There is also conditional eligibility for the deceased’s stepchild or grandchild.

It is clear from this list that a friend is generally not eligible to contest a will in Western Australia. However, a friend may fall into one of the eligible categories. For instance, a former spouse (including a de facto spouse) may have maintained a friendship with the deceased. Similarly, a parent or guardian of the deceased’s child may also be a friend of the deceased. A young friend of the testator who was reliant on the deceased for maintenance can contest a will in Western Australia. The claimant needs to demonstrate that the deceased made regular contributions to their financial upkeep.

How Does A Friend Contest A Will In Western Australia?

When a friend meets these narrow eligibility criteria, they can lodge a Family Provision Application through the Supreme Court of Western Australia. First, however, the claimant should contact the executor of the estate and advise of their intention to claim. This allows the executor an opportunity to settle the matter without recourse to expensive litigation. The executor of an estate must give careful consideration to any legitimate claim. The executor can make an out-of-court settlement to an eligible friend if this is the best outcome for the estate.

When Does A Friend Have To Make A Claim?

In Western Australia, an eligible friend must make their claim within six months of the grant of probate. The Supreme Court may accept a later claim if the claimant has a very good reason for the delay. For instance, the court may make an exception if the friend did not know that the testator had died or received incorrect legal advice.

Alternatives To Ensure A Friend Receives A Bequest

As this article has set out, a friend is generally not able to contest a will in Western Australia. Yet, this does not preclude a testator from including provision for a friend in their will. A testator can legally leave cash, property or any other assets to a friend in their will.

The testator’s family is unlikely to contest a small bequest to a friend. However, it is prudent for a testator to consult a solicitor before leaving a large inheritance to a friend. With legal advice, a testator can mitigate the chances of someone contesting their will. In this way, a testator could make a gift before their death, register an asset in co-ownership with the friend, or place the gift in a trust and name the friend as a beneficiary.

At Armstrong Legal, our contested wills team can guide you through the process of contesting a will. Our solicitors can assist you with every stage, from negotiating a claim with an executor to arguing your case in Court. You may be eligible if you are a friend of the deceased and meet the eligibility criteria set out above. Please contact us or call us on 1300 038 223 for a free initial case assessment. Most of our contested wills work in Western Australia is done on a No Win No Fee basis.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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