Contesting a Will

Is it possible to contest a will in Western Australia?

A Will can be contested after a person has died. However, the situations where this is possible are limited.

The law provides that a person has the right to decide who receives their assets when they die. A person does this during their lifetime by making a Will to say who should receive what.

However, there are some circumstances where someone might contest a Will after the person who made the Will has died.

In Western Australia, a Will can be contested  if:

• there is a more recent Will
• the person who made the Will did not have the capacity to make a Will at the time that they signed the Will
• the Will was made under the influence of other people

It may also be possible to contest a Will if the person who has died did not provide enough for certain family members. This is called a Family Provision Act claim.

Who decides to contest a Will? Will I have to go to court?

Once probate has been granted in a Will in Western Australia, any applications that contest the Will are heard by the Supreme Court of Western Australia. The Court will decide the matter in accordance with the law.

In some cases, it is appropriate for parties to attempt to come to a mediated outcome (sometimes called a “settlement”). Mediated outcomes can be more customised than the orders that a Court can make, and usually enable parties to save on legal fees and resolve the dispute more quickly. In fact, most deceased estate disputes are settled outside of Court. A lawyer with expertise in estate litigation can provide you with advice on strategies to resolve your specific situation.

Who can contest a Will in Western Australia?

People that can ask for greater provision from a Will are:

• a person who was married to, or living as the de facto partner of, the deceased person immediately before they died
• a person who was receiving or entitled to receive maintenance from the deceased person at the date of death
• a child of the deceased person (including a child born within 10 months after the person died)
• a grandchild of the deceased person (some limitation apply)
• a stepchild of the deceased person (some limitations apply)
• a parent of the deceased person (some limitations apply)

If a person feels they have been unfairly left out of a Will, they should seek specific legal advice to find out whether they have grounds for a Family Provision Act claim. Delay could mean that the time frame for bringing a claim has passed.

How long do you have to contest a Will in Western Australia?

Anyone who is considering contesting a Will after a person has died should seek legal advice as soon as possible to avoid their potential claim being out of time.

For example, if a person wants to ask for greater provision from a Will, they generally need to file their application within six months of probate being granted.

Who are the parties in an action to contest a Will?

If someone begins an action to contest a Will, then the parties that they must usually include in the action are the Executor of the Will and any beneficiaries who might be affected by their action.

Who pays the legal costs for contesting a Will?

In some circumstances, the legal costs for challenging a Will can be paid from the deceased person’s estate. However, this is not always the case. There can be serious costs consequences for parties engaging in an inheritance dispute. We recommend that you seek specific legal advice on legal costs before commencing any application to contest a Will.

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.