Challenging a Will in Perth

Challenging a will is different to contesting a will. When a will is challenged this means that the entire will is being questioned and someone is alleging that it is invalid. The consequence of successfully challenging a will is that probate will not be granted and the estate will not be distributed between the beneficiaries named in the will. However, generally, when a will is challenged, all parties will go to mediation and settle the matter outside of course.

In some cases the matter will go to court and each party will need to present their case. Once all cases are presented the court will make an order.

It’s possible to challenge a will on the following grounds:

Fraud in Perth

A will can be challenged on the ground that fraud occurred. This may be because there’s reason to believe that the will was tampered with or that all or part of the will is a forgery.

Undue influence

A will can be invalidated if it can be proven that the will-maker was coerced or pressured into writing their will in a certain way. Undue influence can occur in simple situations where a will-maker was simply pressured into distributing their assets in a way that did not reflect their true wishes.

Signs that there may have been undue influence include:

• changing bank access authorities;
• changes to power of attorney;
• the vulnerability of the will-maker such as age or illness.

Undue influence may also occur when there’s a power difference between the will-maker and another person such as:

• teacher/student
• lawyer/client
• doctor/patient
• parent/child

Lack of testamentary capacity

A lack of testamentary capacity will challenge is where someone is arguing that the will-maker lacked the mental capacity to validly make or change their will. Such a challenge could be based on the argument that the deceased wasn’t aware of the impact that the will could have on other surviving family members who had been financially reliant on them and relying on inheriting some of the estate. It may be possible to prove that the will-maker lacked the capacity to create a legally binding will using medical records that show the will-maker had a mental health disorder or intellectual disability when they created the will. If you would like advice on challenging a will, contact Armstrong Legal Perth contested estates lawyers.

Contesting a Will in Perth

When a person contests a will they dispute the substance of the will. This is often because the person contesting the will argues that it makes inadequate provision for them and that the allocation is unfair.

A will may also be contested because its provisions are impractical.  An example of where a provision in a will may be impractical is where the will-maker has stipulated that they want a particular person to take over their business but the person is unable or unwilling to do so, or where money has been left for a particular purpose which is no longer able to be carried out in the way the deceased envisaged.

It’s important to get legal advice as soon as possible because under the Family Provision Act 1972 (WA) the time limit to lodge a claim is 6 months from the date that probate is granted.

Who can contest a will in Perth?

In Western Australia Section 7 of the Family Provision Act 1972 (WA) states that the following people are eligible to contest a will:

• a spouse or de facto partner of the deceased person;
• a person who was receiving maintenance from the deceased person;
• a child of the deceased who was living with the deceased when they passed; or who was born up to 10 months after the deceased’s death;
• a grandchild of the deceased who was being supported by the deceased at the time of their death; or who was living with the deceased;
• a stepchild of the deceased who was being supported by the deceased at the time of their death;
• a parent of the deceased who was recognised as such when the deceased was alive.

How to Contest a Will in Perth

If you’re an eligible person then the first step in contesting a will is to communicate your intentions to the executor of the will. Often the dispute can be resolved through negotiation. If that is the case, an agreement between you and the other party can be drawn up by your Perth Contested Estates lawyer. If you’re both happy with the agreement then you’ll both sign it and distribution of the estate will proceed.

If the dispute cannot be resolved through negotiations, your lawyer will notify the court that you are proceeding with a Family Provision Claim.

Family Provision Claims

Most Family Provision Claims are initiated by adult children of the deceased who think the will is unfair. When a person lodges a family provision claim they are arguing that they deserve a bigger share of the deceased person’s estate than what was left to them in the original will. An eligible person can also lodge a family provision claim if they were completely left out of the will.

When assessing the family provision claim the court will consider:

• whether or not the deceased person was required to provide for the applicant;
• whether the applicant received adequate provision during their lifetime;
• the applicant’s ability to provide for themselves; and
• the impact the claim would have on other beneficiaries of the will.

How our Perth Contested Estates Lawyers can help

If you are concerned about the validity or the fairness of a will, our contested estates lawyers can assist you. With their excellent negotiation skills, sensitivity and proven track record, Armstrong Legal’s Perth Contested Wills lawyers will simplify the process for you. You can contact them on 1300 038 223 or send them an email.

Consider Will Dispute Lawyers Perth-wide For Professional Advice

With will dispute lawyers Perth-wide, you can address the complexities of estate law and inheritance claim matters. 

At Armstrong Legal, we’ve established ourselves as a dependable legal service provider. Our team’s expertise in contested and challenged wills helps ensure that you receive accurate advice. If you’re looking for will dispute lawyers Perth-wide, we offer tailored guidance for your specific situation, so you can move forward with clarity.

What happens after you make a family provision claim?

Before a trial begins, courts encourage peaceful resolutions through mediation. This offers an opportunity for parties to compromise without draining their resources in lengthy litigation.

If no agreement is reached, a trial is next. Typically, with estate litigation lawyers, each party presents their case to defend their financial needs, relative to the estate’s size. Clarity and preparation are crucial, as parties must demonstrate the legitimacy and necessity of their claims before a judge. 

The Court will then assess the basis of your estate dispute claim and will then consider what provision, if any, it should make. This would happen when it’s decided that the deceased did not make adequate provision for the applicant. 

Generally, the factors considered are the applicant’s financial position, educational background and age, as well as any provisions made in the will. 

In addition to this, if you’re looking to contest a will in Perth, the Court takes into account the relationships between the deceased, the applicant and other beneficiaries, as well as the estate’s asset value and types. Lastly, the court assesses the needs of other family members and beneficiaries. 

Do you need a lawyer when making a claim?

Although self-representation in a family provision claim is possible, will contesting lawyers can offer specialised expertise to handle complex legal landscapes. 

These professionals assess your chances of success, provide will dispute legal advice, walk you through every step of the process of making a claim and clarify potential future costs. They can also discern if a will might be invalid and identify possible claims even with a valid will.

However, most disputes are resolved out of court through negotiation. In this situation, you can look for will dispute lawyers Perth-wide, as they’re crucial for mediating between beneficiaries and executors. 

On the other hand, if the case goes to trial, estate litigation lawyers in Perth can help present evidence, highlight the legal basis of the claim and argue for the best outcome for the claimant.

A structured process can reduce uncertainty in an estate dispute.

Whether you’re considering the legal process for contesting a will or challenging a will, planning is essential for resolving a dispute.

With our estate legal services at Armstrong Legal, you get help narrowing down key issues, finding evidence needed to contest a will or challenge a will, and avoiding unnecessary costs and delays. Every step of this structured process is also explained in plain English, bringing clarity to what’s happening and the decisions you might face. 

When you’re looking for the will dispute lawyers Perth offers, know that ours practise exclusively in Wills and Estates law, including family provision claims, validity and other estate matters. With over 30 years of operation, we have grown into a nationally recognised firm.

Frequently Asked Questions (FAQ)

How long is the process of contesting a will in Western Australia?

The length can vary from case to case, as the timeframe usually hinges on factors like the parties involved and the claim’s legal basis. However, out-of-court settlements can take about 6 months and generally offer a quicker resolution if all parties agree. On the other hand, if a case heads to court, it often stretches to around 2 years. 

This means that whether you’re looking for will dispute lawyers Perth trusts or will dispute lawyers Brisbane-wide and beyond, a compromise between parties can shorten the process significantly.

Who pays the legal costs in will dispute claims?

If you make a family provision claim in Perth and it succeeds, the overall cost typically comes from the estate. However, unsuccessful claimants may bear their own costs and potentially those of the estate. 

At Armstrong Legal, “No Win No Fee” arrangements may be available in some family provision matters, and eligibility is assessed on a case-by-case basis. Similarly, we also have Pay-at-End agreements for certain estate litigation matters. 

With this, whether you’re looking for will dispute lawyers Perth-wide or the will dispute lawyers Sydney presents, we can act for you without requiring you to pay legal fees upfront, subject to a case-by-case assessment. 

Can executors defend a claim against the estate?

Yes. An executor is the person responsible for carrying out the will and administering the estate. That role can involve responding to family provision claims or disputes over validity. 

At our firm, you can connect with an inheritance dispute lawyer in Perth, and they’ll be able to support you either as an executor or a beneficiary. Trust that we can provide strategic support and legal clarity to defend the estate’s position.

Connect with will dispute lawyers Perth-wide today.

Legal challenges often come with a side of grief and family tension. We recognise these emotional elements and offer guidance rooted in empathy and precision. When you’re ready, an experienced will dispute lawyer in Perth can assist you through an initial assessment.

Additionally, we value Australia’s cultural diversity. We welcome clients from different backgrounds to turn to us when they need legal advice for contested wills, challenged wills and other types of disputes.

Whether you’re considering the will dispute lawyers Perth counts on or the will dispute lawyers Brisbane trusts, book an appointment today.