Can a Niece or Nephew Contest a Will? (WA)

While a person may have a very close relationship with their aunt or uncle, the Family Provision Act 1972  does not view a niece or nephew as a natural recipient of a deceased estate. Therefore, a niece or nephew cannot legally contest a will in Western Australia. This article explains who is eligible to make a Family Provision Claim in Western Australia and how a niece or nephew can inherit from a testator in the state.

Who Can Contest A Will In Western Australia?

In Western Australia, the list of people who can contest a will is short. The law acknowledges that a testator has testamentary freedom to dispense with their possessions in whatever way they wish. However, the law also recognises that a testator has a moral duty to provide for certain people. As such, the only people who can question the testator’s decisions are the deceased’s spouse or former partner (who is entitled to maintenance), child and parent. The deceased’s grandchild and stepchild are also eligible to make a claim under certain circumstances. These people can make a Family Provision Claim and ask the Supreme Court of Western Australia to overturn the testator’s will.

A person must be both eligible and left without proper and adequate provision. Adequate provision is a relative concept that varies from claimant to claimant. The claimant should receive provision commensurate with what they are accustomed to and need to live comfortably. The court will assess whether the provision was adequate against various factors, including the claimant’s age, health and lifestyle, and needs and resources. Additionally, the court will consider the estate’s overall value and any competing claims against the estate.

Can A Niece Or Nephew Contest A Will In Western Australia?

A niece or nephew is the legal child of a person’s sibling. In succession law, the terms refer to biological siblings as well as step siblings’ children. There is no allowance for a niece or nephew to contest a will in Western Australia. A niece or nephew is not eligible to contest a will because the law does not assume that a testator has a moral responsibility to provide for their sibling’s child.

Can A Niece Or Nephew Inherit In Western Australia?

Of course, there is nothing to block a testator from leaving their niece or nephew a bequest in their will. This is common. These bequests may be small sentimental items or household possessions, but sometimes the testator will leave a larger bequest to their niece or nephew to give them a helping hand in their future. When an aunt or uncle has an especially close relationship with their sibling’s child, they may leave a substantial part of their estate to that person. A testator should only do this with an awareness that any eligible claimant could request a redistribution of the estate in their favour.

A testator who is worried about the prospect of litigation might want to make alternative arrangements for their niece or nephew. Instead of leaving a testamentary bequest, the testator might give their niece or nephew an early inheritance during their lifetime. For instance, a testator may know that their niece is saving for a house deposit. Instead of making a bequest in their will, the testator might choose to contribute to her niece’s savings to help her reach her goal earlier. This approach allows the testator to watch her niece enjoy the gift. A testator can also register an asset such as a house in co-ownership. When a testator holds property in joint tenancy, the house becomes the sole possession of the niece or nephew when the testator passes away.

Can A Niece Or Nephew Inherit From An Intestate Estate In WA?

A niece or nephew can inherit from an intestate estate in Western Australia. The Administration Act 1903 establishes the rules of intestate succession in Western Australia. When someone passes away without a valid will, their possessions are distributed according to a statutory formula. As such, a niece or nephew is entitled to inherit a share of a sizable estate if the deceased had no spouse or child. In fact, if the deceased had no other close family (spouse, child, parent or sibling), the niece or nephew is entitled to the whole deceased estate.

If you are the niece or nephew of a testator, you are unlikely to be eligible to contest their will. However, you may need to defend your inheritance or claim against an intestate estate. The contested wills team at Armstrong Legal can give you expert advice on deceased estates and your prospects of success.  Please contact our experienced team to discuss your case or telephone our offices on 1300 038 223 to make an appointment.