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Time Limits To Contest A Will (WA)

It is imperative that anyone who intends to dispute a will in Western Australia does so without delay. It is essential to act swiftly because there are time limits to contest a will in WA. This article explains the statutory time frames for making a Family Provision Claim against a deceased estate in WA and explains the limited justifications for lodging a claim outside the time limits.

What Is A Family Provision Claim?

Under the Family Provision Act 1972 an eligible person can contest a will through a legal instrument called a Family Provision Claim. Someone can bring a successful claim if they were entitled to provision from the testator but received inadequate or no provision for their current and future financial needs. The Supreme Court can order a redistribution of the deceased estate to benefit the claimant in whatever measure they see fit.

Who Is Eligible To Contest A Will?

The following persons are eligible to contest a will in WA.

  • A husband or wife of the deceased;
  • A de facto spouse of the deceased;
  • A former marital or de facto spouse entitled to maintenance from the deceased;
  • The deceased’s biological or adopted child, born either before the testator’s death or in the ten months following their death;
  • A parent who was acknowledged by the deceased before their death;
  • A grandchild of the deceased (in some circumstances);
  • A stepchild of the deceased (in some circumstances);
  • A recipient of maintenance from the deceased.

Time Limits To Contest A Will

Time limits to contest a will vary across Australia, so it is essential that a claimant check the regulations in their own jurisdiction. In WA, a claimant has six months from the grant of probate to contest the provisions of a will. A claimant should contact the executor/s of the estate as soon as possible to notify them that they intend to contest the will. It is possible that the claimant will be able to privately negotiate an agreement with the executor/s without escalating the matter to an official and expensive court action.

How To Contest A Will After Time Limits

There is a provision in WA legislation for an application to be made after the time limit has passed if the court is convinced that justice is served by an extension. A claimant can file a motion to make an out of time application at any time, without regard to the statutory time limits to contest a will.

A late application will be assessed against the following factors:

  • The extent of the delay in making the application;
  • The reason for the delay in making the application;
  • How promptly the claimant gave notice to the executor of their intent to contest the will;
  • If negotiations commenced between the claimant and executor/s within the time limit but had not concluded within the limitation period;
  • Whether the executor/s had partly or wholly distributed the estate at the time that they received notice of the claim;
  • Whether a beneficiary had changed their circumstances in reliance on their bequest;
  • Whether the claimant has an arguable case;
  • Whether if the extension is denied, the claimant would have no other options for redress;
  • Whether the applicant instructed solicitors and ensured that the solicitor pursued the claim.

In the event that the estate has already been distributed, the court can in some circumstances make an order pursuant to the Trustees Act 1962 to reclaim distributed assets or the equivalent value of assets from beneficiaries. However, it is inequitable to grant relief in such a way if the beneficiaries received the assets in good faith and subsequently altered their circumstances on the assumption that they had an indefeasible interest in the asset.

Time Limits To Contest A Will: Case Study

The question of time limits to contest a will in WA was examined in the 2014 Supreme Court case of Scott v Hamilton. In this case, the plaintiff was the daughter of the deceased and had received a third of her mother’s estate, with the remainder being shared between her brother and uncle. The plaintiff made an application to bring a claim against the estate eight months out of time (a total of fourteen months after the grant of probate).

The court considered the application in light of the established criteria, and concluded that the length of the delay marginally lent itself to refusal of the application, the notice provided to the executor and the distribution of the estate did not weigh against the judgment either way, and the plaintiff’s claim was arguable but not particularly strong. On balance, the court decided that these factors cancelled each other out, and the decision to grant extension should be made on the basis of the reason for the delay. In this instance, the plaintiff had consulted several law firms during the allowed time frame and had been advised that it was unlikely that her claim would be successful. The plaintiff then waited another seven months before instructing the firm that brought the actual claim. The court found that the claimant had not adequately explained this seven months delay. Given the lack of evidence to the contrary, the court concluded that the plaintiff had made an informed decision not to go forward with a claim in the time limit, and subsequently changed her mind. This was not adequate justification for a delay and grant of extension and the plaintiff’s application was unsuccessful.

This case demonstrates that although there is provision for an extension of the time limits to contest a will in WA, there is no guarantee that the extension will be granted. An application will only be successful when evidence is produced to substantiate the delay.

The take away from this case study is that a claimant delays making an application at great risk. It is highly recommended that a claimant to consult a solicitor experienced with these matters, such as the members of the Contested Wills Team, within the six months time limit. If a claimant must make an out of time application, they need to be able to justify the delay with a convincing explanation. For assistance with any of these legal actions, please call 1300 038 223 to discuss your case or contact our offices 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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