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How To Contest A Will (WA)

In Western Australia, a testator can draw up their will to benefit whomever they wish. However, the Family Provision Act 1972 allows those who are legally and morally entitled to adequate provision from the deceased estate to seek redress. An eligible claimant can petition the Supreme Court of WA to contest the will of a deceased person who was living in WA or who owned assets in the state when they passed away.  This article explains how an eligible claimant can contest a will in WA.

There is a two-fold test for anyone planning to contest a will in WA. Firstly, the claimant must be an eligible person as set out in the Family Provision Act 1972. Secondly, the claimant must prove that the deceased had a legal and moral responsibility to provide for their support, maintenance, education or advancement in life, and further prove that the deceased has not made adequate provision for these purposes. If someone can pass the two-fold test then they have a potential claim against the deceased estate.

Eligibility to contest a will

Only those who are legally eligible to make a claim against the deceased estate can contest a will in WA. A claimant must be identifiable as falling within certain categories of eligible claimants, being one of the following:

  • A de facto partner or spouse of the deceased person;
  • A former spouse or partner who was entitled to maintenance from the deceased or was already receiving maintenance;
  • A child of the deceased, including a child who was born within ten months of the deceased’s death;
  • An acknowledged parent of the deceased;
  • A grandchild of the deceased under certain circumstances;
  • A stepchild of the deceased under certain circumstances;
  • A person receiving maintenance from the testator before his or her death.

How to contest a will: Obtain A Copy

An important preliminary step for any claimant planning to contest a will is to evaluate the existing disposition of the deceased’s will. The claimant needs to know the overall size of the estate, as well as the liabilities and bequests to beneficiaries. In WA, the executor of the deceased estate has no legal obligation to provide a copy of the will to anyone before probate is granted. However, under common law principles, the executor is encouraged to respond to queries from “sufficiently interested” parties and provide copies of the will upon request.

How to contest a will: Negotiate With The Executor /Mediator

Prior to making an official claim to the Supreme Court, a claimant should approach the executor of the estate in the hope that the matter can be resolved without recourse to court proceedings. Once the executor is notified, they must stop the distribution of assets while the claim is considered.

The executor/s is empowered to make proper and adequate provision to the claimant if appropriate, and only defend the estate where reasonable. They must consider any of the claimant’s offers of settlement, and act in an efficient and appropriate manner. The court has previously held that an executor has a duty to impartially consider the merits of a claim against the estate and negotiate to reach a compromise that will prevent the matter proceeding to court and eroding the estate by incurring legal costs. If negotiations between the executor/s and the claimant are not successful, the claimant should file a Family Provision Claim in the WA Supreme Court.

How To Contest A Will: Establishing Grounds

Anyone filing a claim in court must prove that the deceased failed to leave adequate provision in their will for the claimant’s welfare. The definition of “adequate provision” is subjective and varies case by case. The court will consider factors including:

  • The financial circumstances of the existing beneficiaries in general and the claimant in particular;
  • The size and value of the deceased estate;
  • The claimant’s relationship with the testator;
  • The deceased’s responsibility to provide for the claimant;
  • The expectation of the wider community.

Other Considerations

The merits of a party’s Family Provision Claim may be undermined if the claimant was estranged from the deceased, or the claimant displayed poor behaviour in their relationship with the testator. In these circumstances, the court will weigh the needs of the claimant against their conduct, with reference to the reasons for any estrangement, and make a decision in light of prevailing community standards.

Court Decision

If the court finds a claim compelling it has the discretion to order provision for the claimant out of the deceased estate. The type of provision depends on the court’s assessment of the claimant’s needs for proper maintenance and advancement.

The legal costs involved in filing a claim against the estate will typically follow the judgment of the case. If the claim is denied, the court will usually order that the claimant pay the costs of defending the estate. If the claim is approved, the court will order the estate to reimburse the claimant for the cost of bringing the claim.

Time Limits for contesting a will

A claimant has six months from the granting of probate to contest a will in WA. Anyone making a claim after that limitation date must obtain leave from the court to make an out of time application. The court will only allow this extension where the justice of the case demands that a claim is heard. The solicitors at Armstrong Legal can assist in drafting a compelling argument for late application.

If you need to know how to contest a will in WA, the contested wills team at Armstrong Legal can answer any questions you have and help you make a Family Provision Claim. For advice or representation please call our team on 1300 038 223 or contact us to arrange an appointment to discuss the details of your case.

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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