Q and A on Contested Wills

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The law relating to contesting a will can be complex and confusing. Nothing is black or white. There are exceptions to every rule and no two cases are ever the same.

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Contesting a Will in Western Australia

Introduction

The words contesting a will refer to a family provision claim, not challenging a Will or a Will dispute. The law relating to contesting a Will in each State of Australia is different.

The following is a summary of fundamental information that any interested person will find helpful if contemplating a family provision claim in Western Australia:


1. Claiming in WA.

A claim can only be made in WA when either:

  • (a) there is real estate property owned by the deceased situated in WA and/or
  • (b) the deceased was domiciled (living permanently) in WA at the date of his or her death and owned personal property anywhere.

2. Obtaining a copy of the Will.

Pursuant to Family Provision Act 1972, s 140(3) after a grant of probate or administration, a copy of the grant may be obtained from court with the will (if any) annexed.

3. When there is no will in WA.

The legal term when the deceased died without a Will is that the deceased died “Intestate”. To research the Intestacy rules for WA please go to “Challenging a Will” in our menu bar.

4. The time limit to contest a Will in WA.

Pursuant to Family Provision Act 1972, s 7(2)(a) the time limit in which to make a claim is within 6 months of personal representative becoming entitled to administer the estate. In other words, a claim for provision must be made within 6 months from the Grant of Probate or Administration.

5. Eligibility to contest a will in WA.

To receive an order for provision or further provision in WA you must be an eligible person/applicant.

Pursuant to Section 7(1)(a) of the Family Provision Act 1972, the following are “eligible persons” who may apply to the Court for a family provision order in respect of the estate of a deceased person in WA:

  • a) former spouse or de-facto partner of the deceased (must be entitled to or receiving maintenance at the time of death);
  • b) child of the deceased living as at the date of death or born within 10 months of the deceased’s death;
  • c) a stepchild of the deceased (in limited circumstances);
  • d) a grandchild of the deceased (in limited circumstances);
  • e) a parent of the deceased.

No other category of applicant is eligible under the Family Provision Act 1972.

6. The evidence the Court takes into consideration in WA.

The following are some of the matters the court takes into consideration:

  • a) any family or other relationship between the applicant and the deceased.
  • b) any obligation or responsibilities the deceased had to the applicant or beneficiary;
  • c) the nature and extent of the deceased’s estate and liabilities;
  • d) the financial resources and financial needs of the applicant and any other applicant or beneficiary;
  • e) any physical, intellectual or mental disability of the applicant or any other applicant or beneficiary;
  • f) any contribution by the applicant to the acquisition, conservation and improvement of the estate or the welfare of the deceased or his or her family;
  • g) the character and conduct of the applicant.

7. When you don’t live in WA.

Where you personally live has no bearing on your claim. The important factor is that the deceased lived in WA and the deceased owned assets in WA. A claimant can very easily make a claim from another State without leaving his or her front door. This is a common and frequent situation. What you don’t want is a lawyer acting for you without a thorough knowledge of the law in the State where you are claiming.

8. When you believe the Will is not valid in WA.

You may be able to challenge the validity of a Will if you believe the Will is a forgery or if the person lacked the mental capacity to make a Will. You can also challenge a Will if you believe there was undue influence placed upon the Will maker in the will making process or if there was fraud involved. For more information see challenging a will.

9. When where and how do you start in WA.

When. Because estate funds can sometimes be sold, transferred or spent, if you are going to make a claim you should do so without delay. Otherwise you may have no assets or funds to claim upon.

Where. You may call any of our offices for assistance. We are also available after normal business hours.

How. We will talk to you about your case and depending upon your wishes immediately attempt to settle your claim before any court action is considered. If the persons named in the Will refuse to settle we will commence court proceeding for you.

For a free case assessment call 1800 90 20 90

10. The legal fees in WA.

Legal costs in family provision cases are at the discretion of the judge however if an order for provision is made for a claimant, the claimant’s costs will be paid out of the estate.

If however the claimant’s case is rejected and no order is made in his or her favour he or she may be ordered to pay the costs of the executor defending the proceedings. For that reason alone we recommend you should only seek advice from a specialist lawyer in this field of law.

There is a lot more detail to discuss with you about costs and the variety of costs agreements available to you in these cases including our guaranteed “No Win No Fees” policy.

For a free case assessment call 1800 90 20 90