Will and estate disputes in Western Australia

Two different things people mean by contesting a will

The phrase covers two legally distinct claims, and the difference decides everything that follows. A family provision claim does not dispute that the will is valid - it asks the Supreme Court of Western Australia to order that greater provision be made for an eligible person out of an estate that did not adequately provide for them. A challenge to validity argues the document is not a valid will at all. The two can occasionally run together, but the tests, the evidence and the deadlines are different.

Who can make a family provision claim in WA

Eligibility is set by the Family Provision Act 1972 (WA). Being eligible does not mean a claim will succeed - the Court still has to be satisfied that adequate provision was not made.

• A person married to, or in a de facto relationship with, the deceased.
• A former spouse or former de facto partner who was receiving, or entitled to receive, maintenance.
• A child of the deceased.
• A stepchild, in certain circumstances.
• A grandchild, in certain circumstances.
• A parent of the deceased.

The time limit, and why it matters more than anything else on this page

An application must be made to the Supreme Court within six months of the grant of probate where there was a will, or within six months of the grant of letters of administration where there was not. The period runs from the grant, not from the date of death - people are regularly caught out by assuming otherwise. The Court has a discretion to allow an application out of time, but Legal Aid WA describes extensions as uncommon, and the length of the delay and the explanation for it will both be examined. If you think you may have a claim, the time to get advice is now, not once the estate is being distributed.

Challenging the validity of a will

A validity challenge is a different claim, usually brought where a family member suspects the will itself is not legally effective.

• Lack of testamentary capacity - the will-maker must have understood that they were making a will, understood the nature and extent of their property, and been able to weigh the claims of people who might expect to benefit.
• Undue influence - actual coercion that overbore the will-maker's free will, not merely persuasion, dependence or a close relationship.
• Lack of knowledge and approval - the will-maker must have known and approved the contents; where the will was properly executed and capacity is not in doubt, this is generally presumed unless the circumstances are suspicious.
• Improper execution - a will must be in writing and signed, with two witnesses present at the same time who then sign in the will-maker's presence.
• Fraud or forgery - where the will-maker was misled, material facts were concealed, or the document is not genuine.

What the Court weighs in a family provision claim

The Court examines the size and nature of the estate, the applicant's financial position and needs, the competing claims of other beneficiaries and eligible people, the relationship between the applicant and the deceased, and any other relevant circumstances. It then decides whether adequate provision was made and, if not, what further provision is appropriate. This is a discretionary assessment of need and competing claims, not an arithmetic exercise, and no outcome can be promised at the outset.

Mediation is where most of these matters end

Estate disputes in Western Australia are usually resolved by negotiation or at mediation rather than at a contested hearing. Mediation lets the parties, the executor and their lawyers test a settlement without the cost, delay and publicity of a trial, and it is generally the point at which the practical realities - the size of the estate, the cost of running the matter, and what each party actually needs - come into focus.

Costs, and who ends up paying them

Costs are at the Court's discretion. Where a claim is reasonably brought and reasonably conducted, it is common for costs - particularly an executor's reasonable costs of responding - to be paid out of the estate. A weak or unreasonably conducted claim carries a real risk of an adverse costs order against the person who brought it. In a modest estate, legal costs can consume a meaningful share of what is being argued over, which is itself a reason to test settlement early.

What an executor should do when a claim is threatened

An executor who learns that a claim may be made should not distribute the estate until the position is clear. Distributing before the six-month period has run can leave an executor personally exposed if a claim later succeeds. Preserve the will file and anything relevant to capacity or the circumstances of execution, notify the affected beneficiaries, obtain your own advice, and engage with the process rather than leaving correspondence unanswered.

Process

1. 1

   Initial consultation to identify whether the issue is family provision, validity, or both, and to fix the deadline that applies to you.

2. 2

   Review of the will, any earlier wills, the grant, and the relevant estate and family information.

3. 3

   Advice on eligibility, on the merits of the claim or the defence, and on the realistic range of outcomes.

4. 4

   Correspondence with the executor or the other parties, aimed at resolving the matter without proceedings.

5. 5

   If it does not resolve, preparation and filing of the application in the Supreme Court of Western Australia.

6. 6

   Mediation, and if that does not resolve the matter, preparation for hearing.

What to prepare

• The will, and any earlier wills you are aware of.
• The grant of probate or letters of administration.
• The death certificate.
• Evidence of your relationship to the deceased.
• Your own financial position - income, assets, liabilities and needs.
• Evidence of financial or caring contributions made to or by the deceased.
• Relevant medical records, where capacity is in question.
• Correspondence with the executor or other beneficiaries.

Risks, deadlines and common mistakes

• Missing the six-month period after the grant. This is the single most common way people lose the right to apply.
• An executor distributing the estate before the period has run, and becoming personally exposed.
• Bringing or defending a claim without the evidence of need, capacity or execution that the claim actually turns on.
• Legal costs eroding a modest estate when a matter that could have settled runs to a hearing.
• Assuming a moral entitlement is the same as a legal one - eligibility and adequacy are assessed against the Act, not against fairness in the abstract.