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How To Stop Someone Contesting A Will (WA)

A solicitor is often asked to provide advice on how to stop someone contesting a will. The truth is there is no way to completely prevent someone from challenging or contesting a will in Western Australia. The Family Provision Act 1972 and the Administration Act 1903 allows the opportunity for a valid will to be contested through a Family Provision Claim. In fact, almost half of all wills are contested in Australia, so it is important to consult a solicitor on the steps that can be taken to limit the scope for someone contesting a will. This article highlights some of the methods that can be used to minimise the contestability of a will in WA.

What Are The Grounds For Contesting A Will In WA?

The Supreme Court of WA will hear eligible claimants only if the deceased was a resident of the state or was the legal owner of real estate within the borders.

An applicant must demonstrate that the testator had a responsibility to adequately provide for their financial needs, beyond the provisions already stipulated in the will. The court will consider whether the existing distribution of assets in the will is fair to all beneficiaries.

Other factors that are considered include the relationship between the testator and the applicant, the lifestyle of the claimant, and any personal circumstances that might impact on their finances and future income earning potential, such as medical conditions. It will be considered significant by the court if the applicant can prove that in the past the testator financially supported them, or that the claimant contributed substantially to the deceased’s estate. The test that the court applies is whether the testator drafted their will in a way that is demonstrably different from a reasonably minded testator.

Who Can Contest A Will In WA?

The Family Provision Act 1972 specifies who can contest a will in WA. This includes the marital and de facto partner of the deceased, a biological or adopted child and anyone who has a legal right to maintenance from the deceased.

If the deceased was financially supporting a grandchild or stepchild before their death then that person also has a right to make a claim. A grandchild can also make a claim in place of their deceased parent. A stepchild can claim if the deceased had previously inherited a sizable amount from the claimant’s parent.

A Family Provision Claim must be made in the six months following grant of probate unless the court grants the claimant leave to make a late application. Someone making a delayed claim without adequate justification can be stopped from contesting a will.

Minimising The Chances Of Someone Contesting A Will

It is imperative that a testator engage a solicitor if they are concerned about the contestability of their will. An experienced estate solicitor will be able to make recommendations on the bequests and compose the language of the will to have the greatest chance of stopping someone contesting a will.

The most straightforward way to stop someone contesting a will in WA is for the testator to make appropriate provision for those who are legally entitled to benefit from the deceased estate. The testator should draft the will as a “reasonably minded” testator would, and make a note of the justification used for each provision, in light of each beneficiary’s current and future financial needs. This pragmatic approach will not allow a testator to “disinherit” a person who is prima facie entitled to provision from the estate (such as a dependent child), but there are other ways for the testator to arrange their affairs to effectively stop someone contesting the distribution of assets.

Structuring Your Assets

A testator can structure their assets to limit the size of the contestable deceased estate. If they have superannuation funds or life insurance, the testator can nominate someone to receive the payouts so that the benefits are never included in the estate.

The testator can also arrange their finances so that their real estate and bank accounts are jointly owned, effectively gifting the assets to the joint owner, as they will be transferred to the co-owner upon death.

There is also the option for a testator to gift the rest of their assets to their chosen recipients before their death. This will allow the testator to make charitable donations and bestow gifts on friends as they see fit. However, this approach may well have a negative impact on the testator’s taxation liability and income support.

Next Steps

The team at Armstrong Legal can advise you on the best approach to stop someone contesting a will in WA. If you have any questions about probate and estate law please call our experienced and friendly team on 1300 038 223 or make an appointment via this link.

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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