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Unfair Wills (WA)

A will is a way for a testator to arrange the distribution of their deceased estate. A testator can draft their will as they wish, regardless of whether someone else finds it unreasonable. However, the Supreme Court of Western Australia can overrule the deceased’s wishes if the testator leaves inadequate provision for their family and dependents. This article looks at what constitutes an unfair will and the options for an eligible claimant when a will is unfair in Western Australia.

Testamentary Freedom

In Western Australia, testators have a common law right to dispose of their worldly goods as they see fit, without regard to anyone else’s opinion. As long as the testator had testamentary capacity (that is, they are of sound mind when they make the will), they have testamentary freedom. Still, this freedom does not prevent an eligible person from contesting an unfair will.

Who Can Contest An Unfair Will in Western Australia?

There are laws in each Australian jurisdiction that allow eligible claimants an avenue to contest the deceased’s testamentary decisions. In Western Australia, the Family Provision Act 1972 permits the deceased’s spouse (including a de facto spouse), children (both biological and adopted), dependents and parents to make a claim. A former spouse, grandchild or stepchild also has conditional eligibility to contest an unfair will.

What Constitutes An Unfair Will In Western Australia?

It is not unusual for someone to feel that a will is unfair. A family member may be surprised by an unexpectedly small inheritance and question whether they should contest the will. Just because someone believes that they were unfairly treated does not mean that the court will agree that they were entitled to receive more from the deceased estate.

When the Supreme Court reviews a will, it asks what a reasonably minded testator would do in the same circumstances. The court will first ask whether the will is unfair given the nature of the relationship between the claimant and the testator. For instance, even if a claimant was estranged from the testator, the court may still decide that the testator had a duty to provide the claimant with financial support. On the other hand, if the claimant was living independently without the testator’s financial support for many years, the court may find that the testator was reasonable in their actions.

A fair will takes account of the individual financial needs of family and dependents. Some testators make the mistake of leaving their estate equally amongst beneficiaries without regard to each beneficiary’s specific needs. The court compares the existing provisions of a will with the claimant’s financial circumstances. For example, a will with equal provision for the testator’s four children may be “unfair” because only one of the children is in financial need, while the other three are affluent. In that case, the court may order a redistribution of the deceased estate to benefit the claimant.

In its calculations, the court will evaluate the applicant’s need against the needs of existing beneficiaries and other claimants against the deceased estate. In the recent case of Mills v Piller [2017], the Supreme Court of Western Australia underscored the significance of competing interests to a Family Provision Claim. In this case, the deceased left an estate worth over two million dollars equally to her five children. One of her daughters claimed that the will was unfair because she was financially worse off than her siblings. She was unemployed as she had acted as a registered carer for her mother before her death. The court ultimately rejected the claim, stating that the claimant’s existing provision was adequate and proper as the current beneficiaries were also in financial need.

When Can A Claimant Contest An Unfair Will?

A claimant can only contest a probated will, so they must wait until the executor obtains a Grant of Probate. There are also deadlines when making a Family Provision Claim in Western Australia. The applicant must file a claim with the court within six months of the grant of probate. However, the court may hear a late claim in extraordinary circumstances, such as if the claimant was unaware of the testator’s death or their legal advisor provided inaccurate advice on the deadline to claim.

If you are a beneficiary of an unfair will, or you have been left out of a will altogether, you should take action to receive a fair distribution from the deceased estate. Here at Armstrong Legal, the contested wills team had extensive experience helping family members to contest an unfair will in Western Australia, often on a no-win/no-fee basis. We can help you every step of the way to ensure that you receive a fair share of the deceased estate. Please call 1300 038 223 today to set up a meeting or contact our team via this online form.

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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