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Disputing A Will (WA)

When someone dies in Western Australia and leaves behind a will, it is not uncommon for the will’s validity to be challenged or its distribution of property to be contested. The Supreme Court of WA will hear a disputation of a will if the deceased resided in the state or owned property in WA. This legal disputation is possible through the Family Provision Act 1972 and the Administration Act 1903. This article outlines the processes that are involved in disputing a will in WA.

Disputing A Will Through A Challenge

If someone has reason to believe that there is something wrong with the will of a deceased, they should consult a solicitor immediately and discuss the options for disputing the will, including filing a caveat with the Probate Registry to forestall the court issuing a grant of probate.

When disputing a will, parties are expected to file affidavits supporting their positions, and then attempt to resolve the matter with the help of a mediator at a judicial case conference. Should the parties be unable to reach an agreement at mediation, the matter will be referred to a hearing in front of the Court Registrar.

At the hearing, the executor is asked to prove the will in solemn form, and the caveator will have a chance to prove evidence of the will’s lack of validity. If the Registrar has already issued a Grant of Probate it is much harder to revoke the will, but a solicitor can advise on the legal options.

Grounds For Disputing A Will

A will is challenged when there is evidence to suggest that the document itself is invalid. A will must meet certain statutory requirements set out in the Wills Act 1970. There are several different ways that a will can be invalid. For instance, a will may be informally written, and lack the technical conventions required for a legal and valid will. An informal will may not be signed by the testator, or may not be witnessed by impartial witnesses. Informal wills can still be validated by the court if the testator’s wishes are clear and informed.

More serious challenges are based on other factors, such as if a more current will has been discovered. A challenge can also be mounted against a will if the applicant can prove through medical evidence that the testator lacked the necessary testamentary capacity to understand the consequences of making a will because of intellectual disability or dementia. A will can also be challenged if the testator was unduly influenced or coerced into making the will.

A successful challenge is grounds for the will to be overturned.

Contesting a will

There are also ways of disputing a will that is valid. In WA, the Family Provision Act 1972 allows for specific relatives and dependents to apply to the court for a Family Provision Claim. The list of eligible persons includes:

  • A de facto partner or spouse
  • Anyone entitled to maintenance from the deceased
  • A legally adopted or biological child of the deceased
  • A grandchild or stepchild of the deceased if:
    • they were at least partially maintained by the deceased before their death; or
    • if the grandchild is eligible to inherit their deceased parent’s right to contest the will; or
    • if the stepchild’s other parent predeceased the testator and left property to the deceased in an amount greater than $460,000.

These claims are made when someone believes that the testator had a moral obligation to make greater provision for them under their will. An application must be made before 6 months lapses relative to when probate was granted, otherwise, the court will only hear a claim if there is convincing justification for the delayed application.

The court will apply an “adequacy test” to the case, assessing whether the deceased has already provided adequately for the claimant in the will. Other factors that are considered are the claimant’s financial circumstances, medical needs and lifestyle, and the nature of the relationship between the deceased and the claimant. The court will consider if the claimant contributed materially to the estate of the deceased and if either the testator or the claimant provided material support for the other. The court will weigh these factors against the interests of other beneficiaries named in the will, in light of the total value of the estate, and the wishes expressed by the testator. If the court decides that the testator’s provision is inadequate then they can choose to order further provision for the claimant.

Disputing a will in WA can take several forms, and the contested wills team at Armstrong Legal can help you take the appropriate legal action. If you have any questions about wills and estates, or any legal matter, please get in touch on 1300 038 223 or contact us to make an appointment.

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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