In Western Australia (WA), contesting a Will is a complex process involving laws with specific nuances. This article will answer some of the most common questions people may have when considering contesting a Will in WA. The information is general in nature only, and we recommend you obtain professional advice relevant to your circumstances.

What Does It Mean to Contest a Will?

It is important to distinguish between the process of ‘contesting a Will’ (called a Family Provision Claim in WA) and the process of ‘challenging a Will’.

You may challenge a Will because you have reason to believe that there is something invalid or fraudulent about the Will, and you are asking the courts to investigate this possibility. In contrast, you may contest a Will under a Family Provision Claim when you feel that you have received inadequate provision under that Will.

Am I Eligible to Contest a Will in Western Australia?

In WA, the law restricts the categories of persons who can make a claim against a Will for adequate provision. Most significantly, spouses, de facto partners, children and dependants are eligible claimants to make Family Provision Claims.  Additional categories of claimants includes stepchildren and grandchildren in limited circumstances.

If you fall into one of the clear categories (that is, you are the spouse or child of the deceased) and believe you have not been adequately provided for in their Will, you are likely eligible to make a Family Provision Claim. If you do not fall into these categories, you should speak to an experienced lawyer to determine if you could be considered an eligible dependant based on your prior relationship with the deceased. The logic of this additional category is that if you have been receiving support from someone and they die, it may be reasonable for you to expect to continue to receive that support in the form of a provision in their Will.

What is the Time Limit for Contesting a Will?

In WA, time limits for contesting a Will are enforced fairly strictly. You have six months from the date of the grant of probate to file a claim. As such, it is crucial to seek legal advice promptly if you are considering contesting a Will.

In some cases, the court may grant an extension and allow a late claim to be filed. This is more likely when the delay was genuinely outside the control of the claimant,such as if they were unaware of the passing of the deceased or they received incorrect advice. However, it is best not to rely on obtaining an extension and ensure that claims are filed promptly.

Will I Have to Go to Court?

Many Family Provision Claims are settled outside the courtroom. The executor of the Will has the power to settle these claims, and it is often the case that an executor will sensibly reach a compromise between the parties. This process is often facilitated by lawyers for the executor, the claimant and any beneficiaries, who reach an agreement based on the likely outcome if the matter did proceed to a trial.

In addition, mediation can be used in Will contests. This involves a neutral third-party facilitating discussions between the parties to reach a mutually acceptable agreement. Mediation can be a more cost-effective and a less adversarial approach compared to a trial. The court will require parties to attempt mediation before proceeding to trial.

What are the Costs Involved in Contesting a Will?

Ideally, a Family Provision Claim will be settled early in the process, reducing the overall legal costs involved. To prevent accruing unnecessary legal fees, it is important to seek an initial consultation with a lawyer regarding your chances of success.  In every case, it is crucial to discuss fees and payment structures with your lawyer before proceeding.

What Factors Does the Court Consider?

Sometimes contesting a Will does involve trial and in such cases the court carefully considers the evidence presented. The court aims to balance the testamentary freedom of the deceased (that is, their right to leave their property as they prefer) with the legitimate claims of eligible persons.

Factors such as the financial and personal circumstances of the claimant, the size of the estate, and the deceased’s relationship with the claimant are taken into account. The court’s primary goal is to ensure that adequate provision is made for eligible persons in a just and equitable manner.

What About No-Contest Clauses?

Some Wills include a so-called ‘no-contest’ clause, which attempts to discourage beneficiaries from contesting the Will. However, you cannot contract out of a Family Provision Claim.

Can I Contest an Intestate Estate?

If the deceased did not have a valid Will, their estate will be distributed according to the intestacy laws of WA. Eligible persons still have the opportunity to make a Family Provision Claim if they believe the intestacy laws do not adequately provide for them.

Conclusion

Contesting a Will in WA is a legal process that requires careful consideration of the specific circumstances and applicable laws. It is advisable to seek professional legal advice early in the process to understand your rights, assess the merits of your case, and navigate the complexities of Will contests. Remember, time is of the essence, so if you believe you have grounds to contest a Will, consult with a legal professional at TLS promptly to ensure you meet the statutory deadlines.

If you are considering contesting a Will, or even if you’re just looking for advice, our online Estate Disputes assistant is the best, first step.

Or, if you or someone you know wants more information or needs help or advice, please feel welcome to call us on 6383 5551 or email us at re*******@*ls.law.