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How do I contest a will?

There are several grounds for contesting a will. The most common can be broadly categorised into the following two scenarios:

  1. there is a query as to the validity of the will; or
  2. the will is a valid will, but it does not adequately provide for an eligible person/s.

Validity of the Will
The validity of a will may be called into question if (for example):

  1. the will does not meet the requirements for validity set out in the Wills Act 1970 (WA);
  2. the deceased did not have the requisite testamentary capacity to make a will at the relevant time;
  3. the deceased was subject to undue influence, coercion or manipulation when making the will;
  4. the will is fraudulent or forged;
  5. the deceased was married or became divorced after the date of execution of the will; and/or
  6. there is a more recent will of the deceased.

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.

Adequate Provision
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:

  1. a spouse or defacto of the deceased;
  2. a person who at the date of the death of the deceased was receiving or entitled to receive maintenance from the deceased as a former spouse or former de facto partner of the deceased (whether pursuant to an order of any court, or to an agreement or otherwise);
  3. a child of the deceased living at the date of the death of the deceased, or born within 10 months after the deceased’s death;
  4. a grandchild of the deceased, who:
    • a. was being maintained wholly or partly by the deceased immediately before the deceased’s death;
    • b. at the date of the deceased’s death, was living and one of whose parents was a child of the deceased who had predeceased the deceased; or
    • c. was born within 10 months after the deceased’s death and one of whose parents was a child of the deceased who had predeceased the deceased.
  5. a stepchild of the deceased who was being maintained wholly or partly or was entitled to be maintained wholly or partly by the deceased immediately before the deceased’s death;
  6. a stepchild of the deceased, if:
    • a. the deceased received or was entitled to receive property from the estate of a parent of the Family Provision Act 1972 otherwise than as a creditor of that estate; and
    • b. the value of that property, at the time of the parent’s death, is greater than the prescribed amount; and
  7. a parent of the deceased.

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) :

  • the size and nature of the deceased’s estate;
  • the relationship between the applicant and the deceased; and
  • the relationship between the deceased and other persons who have legitimate claims to his or her estate.

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.

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