Wills & estates
Challenging or Defending a Will in Western Australia
Direct answer: There are two different things people mean by contesting a will. One is a family provision claim - accepting the will is valid but asking the court for adequate provision - which in Western Australia must generally be brought within six months of the grant. The other is a challenge to the validity of the will itself, on grounds such as lack of capacity, undue influence or improper execution. They involve different tests, different evidence and different tactics.
Family provision claims
Under the Family Provision Act 1972 (WA), a person in an eligible category who has not been left adequate provision for their proper maintenance, support, education or advancement in life can apply to the Supreme Court of Western Australia for provision out of the estate. The eligible categories are defined by the Act and include a spouse or de facto partner, a former spouse in defined circumstances, children, and grandchildren, stepchildren and parents in the particular circumstances the Act sets out.
Eligibility is only the entry point. The court then asks whether adequate provision was in fact made, looking at the size of the estate, the applicant's financial position and needs, their relationship with and contribution to the deceased, the position of the other beneficiaries, and any competing moral claims. A will made for reasons the deceased explained clearly is harder to disturb than one that simply left someone out.
The six-month deadline
The period runs for six months from the date of the grant of probate or letters of administration - not from the date of death, and not from when the applicant found out what the will said. The court can extend the period in limited circumstances, but the estate may have been distributed by then, and the later the application the harder it becomes.
If you think you may have a claim, the first step is finding out whether a grant has issued and when. That is a search, not a guess, and it should be done immediately rather than after the family conversation runs its course.
Challenging the validity of the will
A separate line of attack says the document should not operate as a will at all. The usual grounds are:
- Lack of testamentary capacity. The will-maker must have understood that they were making a will and its effect, the extent of their property, and the claims of those who might expect to benefit, and must not have been affected by a disorder of the mind that distorted those judgments.
- Lack of knowledge and approval. The will-maker must have known and approved the contents. Suspicion arises where a beneficiary was involved in preparing the will, or where the will-maker was blind, illiterate or signed by a mark.
- Undue influence. Not persuasion or pressure in a general sense, but coercion overpowering the will-maker's own wishes. It is a demanding standard.
- Improper execution. The formal signing and witnessing requirements were not met.
- Forgery or fraud. Rare, and serious to allege.
- Revocation. A later will, or an act of revocation, means the document is not the last valid will.
Medical records, the will drafter's file and notes, and evidence from those who dealt with the will-maker around the relevant time usually decide these cases. That evidence should be preserved early.
Stopping a grant: caveats
Where there is a genuine question about validity, a caveat can be lodged in the Supreme Court to prevent a grant issuing without notice, so the question is dealt with before the estate is administered. A caveat is not a device for buying time or applying pressure in a family provision dispute, and lodging one without proper grounds can carry costs consequences.
What it costs, and who pays
The old idea that the estate always pays everyone's costs is not the law. Costs follow the court's discretion, and an unsuccessful applicant can be ordered to pay costs. Because most estates are modest, litigation can consume a meaningful share of what is in dispute - which is the strongest practical argument for resolving the matter early.
Mediation resolves most of these
Most estate disputes settle, usually at mediation, and usually for a figure well short of the opening positions. Mediation also allows outcomes a court cannot easily order - a right for a partner to remain in a house for life, an asset going to the person who wants it rather than being sold, a private apology or explanation. Those matter to families in a way a judgment does not.
If you are the executor
An executor faced with a claim should not distribute, should notify the beneficiaries, and should generally remain neutral between competing claimants while defending the estate's position properly. Distributing in the face of a known claim exposes the executor personally.
What to bring
- a copy of the will, and any earlier will you know of;
- the death certificate, and the date of the grant if one has issued;
- what you know of the assets and their approximate values;
- your financial position - income, assets, liabilities, health and dependants;
- a history of your relationship with the deceased, including any care or financial contribution;
- anything the deceased said or wrote about their intentions;
- details of the other beneficiaries and their circumstances, as far as you know them.
How Legal Care Australia can help
We assess eligibility and the merits honestly at the first consultation, confirm the deadline position, gather and preserve the evidence, negotiate and mediate, and advise the executor on defending the estate. Where a claim is weak we say so before costs are incurred, because a weak estate claim is an expensive way to grieve.
Next step: book a consultation quickly if a grant has issued - the six-month period does not wait for the family to agree.
Official sources
General information only, not legal advice. Eligibility, deadlines and prospects depend on the individual circumstances.