There are several grounds for contesting a will. The most common can be broadly categorised into the following two scenarios:
Validity of the Will
The validity of a will may be called into question if (for example):
Contesting a will on the basis of its validity should be undertaken prior to a grant of probate being obtained. If you query the validity of a purported will, it is important to seek legal advice as soon as possible to preserve your rights and interests.
It is possible under certain circumstances to lodge a caveat under section 63 of the Administration Act 1903 (WA) to prevent a grant of probate being made without notice to the caveator.
If you are unsure whether probate has already been obtained, you can complete a probate search enquiry form at the Supreme Court of Western Australia (available online at: https://www.supremecourt.wa.gov.au/P/probate_fees.aspx?uid=2204-6428-3676-6753) as grants of probate are considered public documents.
If you have been left out of a will or feel you have not been adequately provided for in the will of a deceased person, you may have a claim for adequate provision under the Family Provision Act 1972 (WA).
A claim of this nature can only be made after a grant of probate (or letters of administration) has been obtained.
Who can apply for provision from a deceased’s estate?
Pursuant to Section 7 of the Family Provision Act, the following persons may apply for provision out of the estate of a deceased person:
What is the meaning of “adequate” provision?
It is a common misconception that the children of a deceased person must receive equal provision from the estate of their parent.
Rather than looking at “equality” between the beneficiaries, or the “fairness” of the distribution contained in a will, the Court will consider whether an eligible applicant has been left with adequate provision for his or her proper maintenance, education and advancement in life, having regard to (inter alia) :
If it is determined that the applicant has been left without adequate provision, the Court will then consider what provision (if any) should be made from the estate.
A claim for adequate provision must therefore be made with reference to the specific financial (and other) needs of the applicant.
How long do I have to make a claim for adequate provision?
The time limit within which you must make an application for adequate provision is 6 months from the date of probate or letters of administration.
In certain circumstances, the Court may grant leave to an applicant to apply out of time. If you wish to make a claim for adequate provision but are outside the time limit, we recommend you seek legal advice as soon as possible.
"The content in this publication is general only and is not legal advice to be relied on. If you require specific legal advice concerning the topic of this publication, please contact our office to speak with one of our lawyers."
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