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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.

Grounds For Contesting A Will (WA)


Under the Family Provision Act 1972, an eligible person can dispute the distribution of a deceased estate if they have appropriate grounds for contesting a will in WA. Fundamentally, a claimant must prove that the testator had a duty to make provision for their welfare and failed to provide adequately for this purpose in the will. Whether a claim is successful will depend on a range of other factors, including the total value of assets in the estate, the relationship between the claimant and the testator, and the claimant’s circumstances and financial needs in comparison with the needs of other beneficiaries. This article summarises the main grounds for contesting a will in WA and uses a case study to demonstrate the court’s approach to the assessment of such cases.

A claimant may only apply to the Supreme Court for a Family Provision Order if the deceased resided in WA before their death, or was the registered owner of property within the state. A person may file a Family Provision Claim if they are an eligible person and are able to establish the necessary grounds.

Grounds For Contesting A Will in WA -Eligibility

A select list of people who are close relatives or dependents of the deceased is eligible to file a claim against the estate. This list includes the de facto partner or spouse of the deceased, a child of the deceased and a parent of the deceased. Anyone who was entitled to maintenance support from the deceased may also contest the will. A stepchild or grandchild who was dependent on the deceased can also lodge a claim. A stepchild may also claim if their stepparent received a bequest from the natural parent’s estate that is greater than the prescribed amount. A grandchild born before the testator’s death or in the next ten months may also have a claim if their parent was a child of the deceased, but passed away before the testator.

Adequate And Appropriate Provision

The court will assess a claim against two main qualifiers. First, an assessment of what would be an appropriate provision for the proper support, maintenance, education and advancement in life of the individual. Second, whether the claimant received this adequate provision. The question of whether the claimant received adequate provision is assessed at the date of the testator’s death.

If the court finds that there has been an injustice, it will then calculate the appropriate provision for the claimant. This is assessed at the date of the court order and will reflect the claimant’s most recent circumstances and needs. In both questions, the court will have reference to a range of factors, including community standards. Each case is unique and will therefore be assessed differently.

Grounds For Contesting A Will in WA

The court will consider a range of factors while determining the claim, to assess whether the claimant has grounds for contesting the will. The court will consider:

  • The size of the estate;
  • Whether a redistribution will negatively impact on other beneficiaries;
  • The extent of the estate’s liabilities;
  • The finances of the claimant;
  • The finances of all other beneficiaries;
  • The relationship between the claimant and the testator;
  • The relationship between the testator and other beneficiaries;
  • Any financial or other contributions from the claimant to the deceased estate or the family of the deceased;
  • Any financial support that the testator previously gave to the claimant.

Claimant’s Circumstances

The court will concentrate particularly on the circumstances of the claimant, and their capacity to provide for their own financial needs. As such, the court will take note of the claimant’s age and the claimant’s physical, mental and intellectual capabilities, as these factors will impact the claimant’s ability to earn income. The claimant’s character and history of behaviour may also be of interest to the court in making an assessment of their right to inherit.

Case Study On Grounds For Contesting A Will

In the 2020 case of Balla v Roberto Bei as Executor of the Estate of the Late Givanni, two daughters of a deceased were excluded from inheriting from their father’s estate, valued at under $300,000. The deceased left his estate divided equally between one son and a friend who had assumed the role of a substitute daughter. A fourth child was not included in the will and did not participate in the litigation.

The deceased’s son was appointed to act as executor of the estate. The son had sustained a head injury and was not able to obtain employment, but he had given his father some of his injury compensation payment to help discharge the father’s mortgage. The daughters had also contributed to the deceased estate, as they had worked without compensation in the family business and provided domestic and financial assistance to their parents. Initially, the family was very close and the parents spent time with their grandchildren, but after the death of their mother, the parties became estranged due to the father’s decision to swiftly form another relationship.

The testator moved interstate to be with his new wife before moving back to WA and making the acquaintance of his neighbor, who became a substitute daughter, helping him with domestic tasks, allegedly for no recompense. There were some unsubstantiated allegations that the friend received financial gifts and loans from the testator. The second wife was not a beneficiary of the will and she also did not contest the will. The court also heard a great deal about the character of the various parties.

The daughters lodged a claim for 20% and 30% of the estate respectively. The daughters were required to file affidavits outlining their financial circumstances and providing details of their income, assets, liabilities and expenditures, and stating why they required provision from the estate. The daughters were each able to demonstrate financial need, due in part to issues with their health. The son who was acting as executor did not oppose the claim but requested that the provision for the daughters come from the friend’s portion of the estate rather than his own share. The deceased’s friend vehemently opposed the daughters’ applications and argued that among other factors, one of the daughters was not the biological child of the deceased and that the daughters forfeited their right to provision because of their estrangement.

The court ultimately decided that:

  • Both claimants were legally children of the deceased;
  • Both daughters’ financial circumstances meant that they required provision for their reasonable maintenance;
  • The estrangement was not particularly the daughters’ fault and was not sufficient to refuse the claim;
  • The friend deserved some provision despite some issues with her evidence; and
  • The son, given his own health and circumstances, also deserved provision.

Ultimately the court ordered that the deceased estate be redistributed to provide the daughters the requested 20% and 30%, with 25% assigned to the son and 25% to the friend. The court explained that the small size of the estate could not be said to give sufficient provision to any party, and stated that if the estate had been larger then a different order would be appropriate.

As this case study demonstrates, litigating a Family Provision Claim is complicated. The contested wills team at Armstrong Legal can advise you on whether you have grounds for contesting a will in WA and can help you to file a persuasive claim against a deceased estate. We encourage you to contact our solicitors without delay, please call 1300 038 223 to discuss estate law or any other legal matter.

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