Disputed Estates

Assisting in disputed estate matters

Family Provision Act claims

The Family Provision Act 1972 (WA) allows eligible persons to make a claim against a deceased’s estate if they can demonstrate to the Supreme Court of Western Australia that the distribution of the deceased’s estate by Will or by the laws of intestacy are not adequate for their proper maintenance, support, education, or advancement in life.

Such eligible persons include:

  • The deceased’s spouse;
  • The deceased’s children;
  • In limited circumstances, the deceased’s grandchildren;
  • In limited circumstances, the deceased’s stepchildren; and
  • The deceased’s parents.

If the Court determines that the deceased’s estate has not made adequate provision for a claimant, the Court will decide what provision should have been made for the claimant.

For further information regarding making a claim for adequate provision, defending a claim made by another person for adequate provision, or acting as an Executor of an estate that is subject to a claim for adequate provision, please refer to Inheritance website page.

Challenging the validity of a Will

A Will is not required to be in any form, however a Will must meet the formal requirements of Part 3 Section 8 of the Wills Act 1970 (WA) as follows:

  1. It is in writing;
  2. It is signed by the Testator or signed in the Testator’s name by some other person in the Testator’s presence and by the Testator’s direction, in such place on the Will so that it is apparent on the face of the Will that the Testator intended to give effect by the signature to the writing signed as the Testator’s Will;
  3. The Testator makes or acknowledges the signature in the presence of at least 2 witnesses present at the same time; and
  4. The witnesses attest and subscribe the Will in the presence of the Testator.

A beneficiary of a Will may challenge the validity of a deceased person’s Will in the following circumstances:

  • The Will does not comply with the above formal requirements of a Will;
  • The Testator was unduly influenced when making their Will;
  • The Testator lacked mental capacity to make their Will;
  • The Testator lacked knowledge and approval of the contents of their Will; or
  • The Testator’s Will has been forged.
TLS Wills and Estates

Applications to remove an Executor

If an Executor of a deceased’s estate is unfit to act as the Executor, a beneficiary of the Will may make an application to the Supreme Court of Western Australia for the removal of the Executor and the appointment of another person as the administrator of the unadministered part of the estate.

An Executor may be found to be unfit to act in the following circumstances:

  • They have been held by the Court to have misconducted themselves in the administration of the estate;
  • There has been gross delay in the administration of the estate;
  • They are convicted of a felony or misdemeanour;
  • They are a person of unsound mind;
  • They are a bankrupt; or
  • They have a conflict of duty and personal interest.

How we can help you

Our experienced team at TLS may assist you by:

  • Providing you with specific advice regarding the strengths, weaknesses and likely outcome of your claim; and
  • Commencing any of the above claims or defending you in relation to the above claims.

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