Who Can Contest A Will? (WA)
In Western Australia, the list of those who can contest a will is limited to a deceased’s closest relations and dependents. The Family Provision Act 1972 makes allowance for this group of eligible people to make a Family Provision Claim against the estate of a deceased person in WA. This article explores who can contest a will under WA legislation.
Who Can Contest A Will In WA?
Section 7(1)(a) of the Family Provision Act 1972 states that certain people can make a Family Provision Claim for some provision from a deceased estate or a greater portion than their original bequest. In the event that the Supreme Court concludes that the claimant is entitled to more consideration than the testator allowed in the will, they can make an order for redistribution of the deceased estate to the benefit of the claimant.
A spouse of the deceased has priority rights to contest their spouse’s will in WA. ‘Spouse’ can be defined here as a husband or wife of the deceased, or a person who was living with the deceased in a de facto partnership. A de facto relationship is legally defined in the Family Law Act 1975 as two parties, not related or married, who live together as a couple on a genuine domestic basis.
A former spouse or partner of the deceased can only contest a will if they were entitled to receive maintenance or was already receiving maintenance from the testator before the deceased passed away. This maintenance may be court-ordered or through another form of agreement.
A biological child of the deceased has an absolute right to contest the testator’s will, as long as they were alive when the testator died or were born within ten months of the testator’s death. If the deceased adopted the child in accordance with the Adoption Act 1994 then the child shares the same legal rights as a biological child.
A stepchild does not have the same absolute right under legislative provisions to contest a will as a child. A stepchild must meet certain criteria to lodge a Family Provision Claim. In the event that the testator was maintaining the stepchild immediately prior to their death, then the stepchild can bring a claim against the estate. There is also provision for a stepchild to contest a will if the testator inherited property of a greater value than the prescribed amount from the deceased estate of the stepchild’s natural parent (other than as a creditor).
A grandchild can file a Family Provision Claim, but only under limited circumstances. One of the accepted conditions for a claim is if the testator was maintaining the claimant to some extent before they died. The other circumstance that lends itself to a claim is if the grandchild’s parent predeceases the testator, in which case the grandchild has a right, in place of their deceased parent, to claim against the estate. Both a grandchild born before the passing of the testator and a grandchild who is born in the ten months following the date of death may be eligible to claim under these conditions.
A Parent Can Contest A Will Under Certain Conditions
A parent can be an eligible claimant against a deceased estate in WA, depending on whether the testator acknowledged the relationship during their lifetime. A recognised parent of the deceased can claim irrespective of whether the testator was conceived in a legal marriage.
A Dependent Can Contest A Will In WA
The last category of eligible claimant is anyone who was dependent on the testator for financial maintenance. The claimant must be able to substantiate their claim that they were entitled to or receiving maintenance from, the deceased before he or she died.
Time Limits To Contest A Will
The eligible parties specified above can only contest a will within statutory time frames. In WA, a claimant has six months from the date of probate to lodge a Family Provision Claim. The court will not hear a claim after this date unless justice would only be served by giving leave for the claimant to file outside the filing date. A claimant’s motion for leave can be filed at any time regardless of whether the time limit has expired. Many states in Australia will not hear a claim after the distribution of the estate, but the Supreme Court of WA can give permission for an out of time claim, and even make an order pursuant to section 65 of the Trustees Act 1962 to retrieve the asset (or equivalent value) from a beneficiary in certain circumstances.
The contested wills team at Armstrong Legal is highly experienced in the field of Family Provision Claims and can advise you on all aspects of estate and probate law. If you would like to know who can contest a will in WA, or if you are an eligible person intending to make a claim, please contact or call 1300 038 223 without delay.