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Contesting a Will – Do you feel unprovided for after a loved one’s death? Do you believe that there are not adequate provisions for your maintenance, education and life expenses?

In Western Australia, contesting a person’s Will after their death is possible if:

  • It is possibly invalid due to:
    • Testator incapacity; or
    • Possible undue influence on the testator at the time that the Will was made; or
    • There can be a family provisions claim made under the Family Provision Act 1972 (WA).

Who can claim under the Family Provision Act 1972 (WA)?

The Court will consider two main factors when determining your eligibility for contesting a person’s Will. There are certain classes of people who are related to a deceased person who can file a claim under the Family Provision Act 1972 (WA):

  • Spouse or de facto partner;
  • Child (biological, adopted or illegitimate);
  • Former spouse or de facto partner, if you were entitled to maintenance from the deceased at the time of his or her passing;
  • Step-child, if the circumstances permit;
  • Grandchild, if the circumstances permit; and
  • The deceased’s parents.

What will the Court consider when filing an application?

There are a number of factors that the Court will consider in coming to any decision to redistribute the estate including:

  • The character and conduct of the applicant;
  • The effect of an order on the other beneficiaries of the estate and whether a redistribution would be inequitable;
  • The financial circumstances of the applicant;
  • Whether the assets of the estate have already been distributed to the beneficiaries;
  • Provision made for the applicant during the deceased’s lifetime;
  • The nature of the relationship between the applicant and the deceased during the lifetime of the deceased;
  • The needs of the applicant and the needs of the other beneficiaries.

Are there time limits?

If a person in the classes outlined above decides to make a claim under the Family Provision Act 1972 (WA), they will need to do so within six months of the grant of probate being made to the executor(s) of the estate of the deceased. If they do not make a claim within this six month period, they will need to apply for an extension of time to file an application to claim under the Family Provision Act 1972 (WA). The claimant will need to demonstrate to the Court, among other things, that the justice of the case requires the applicant be granted leave out of time, the application will need to address:

  • The reason for the delay in making the application;
  • How much time has elapsed;
  • The size of the estate and whether it has been distributed;
  • The strength of the claim; and
  • Whether any of the beneficiaries will be unfairly prejudiced as compared to the claimant.

How much can I get if I make a claim?

How long is a piece of string? It depends on various factor, such as the size of the estate and an applicant’s financial position. The Court will also consider, among other things, the relative position of the other beneficiaries. Ultimately, the test is whether the amount an applicant seeks is “adequate provision from the estate for the proper maintenance, support, education or advancement in life” for the applicant.

How do I begin the process to challenge a will?

To commence proceedings against an estate under the Family Provision Act 1972 (WA) the process is to file an originating summons in the Supreme Court of Western Australia, along with an affidavit in support of that application, outlining how the deceased has not made adequate provision for the proper maintenance, support, education or advancement in life of the applicant.

Lynn and Brown Lawyers encourage anyone who has questions regarding their eligibility in contesting a Will to get in touch with one of our experienced estate planning lawyers. You can contact us at www.lynnandbrown.com.au or by calling 9375 3411.

About the Authors: This article has been co-authored by Garrick Garvey & Manav Patel. Garrick was admitted as a lawyer in 2017 after obtaining a Bachelor of Laws and Bachelor of Business (majoring in Economics) from Edith Cowan University in 2014. Manav is in his final year studying a Bachelor of Commerce with a Major in Business Law and Finance. Manav will commence his Juris Doctor in 2023 at the University of Western Australia.

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