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CONTESTED ESTATES PERTH

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Contesting A Will

In Western Australia, certain classes of people can “contest a Will” by making an application to the Court pursuant to the Family Provision Act 1972 (the Act).

With the increase in conflicting moral obligations to spouses, de factos, children, step children and other loved ones, even the most careful Will maker may find that there is someone who feels that they should have received more. Where a person dies intestate, that is, without a valid Will, it is also a real possibility that someone may feel that the laws of intestacy do not leave them with adequate provision from the deceased’s estate. 

The aim of the Act is to make provision for the maintenance and support of the dependants of a deceased person where those dependants do not receive an adequate inheritance from the deceased’s Will, or by section 14 of the Administration Act 1903 if the person died intestate.

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Who Can Contest A Will?

The following classes of people may “contest a Will” by applying to the Court for further provision from an estate:

  • a spouse or de facto partner;
  • a child;
  • a parent;

and, in certain circumstances:

  • a grandchild;
  • a stepchild; or
  • a former spouse or former de facto partner.

The claim must be made within six months of the date of the Grant of Probate or Letters of Administration being made by the Court. In very limited circumstances, the Court may allow a person to make a claim out of the six-month time period, however the reasons for bringing the claim out of time must be compelling. The Court may not allow for an application to be made out of time and therefore it is important that you seek legal advice at your earliest possible opportunity.

WILLS & ESTATES LEAD

Leslie Buchbinder

DIRECTOR

Property Settlement in Court

The Court has a wide discretion to determine what is fair and adequate provision and will consider a number of factors, such as the claimant’s:

  • financial position;
  • lifestyle;
  • medical needs;
  • relationship with the deceased,

as well as other factors such as the:

  • needs of other beneficiaries;
  • size of the deceased’s estate; and
  • moral obligation to provide for the claimant.

With respect to the costs associated with these claims, the Court has the discretion to make any order as to costs in which it considers just. Often where a claimant is successful in establishing that a Will maker did not make adequate provision for them, the Court will order payment of their costs from the estate. It is important to note that this is not the default position however as each case is always determined on its own facts.

Another way in which a person can “contest a Will” is to establish that the Will does not meet the requirements of the Wills Act 1970 and therefore is not valid. The validity of a Will can be contested on the basis that the Will maker lacked the requisite testamentary capacity, did not correctly execute the Will or was manipulated and influenced into signing the Will. There are specific evidentiary requirements in order to support claims which challenge the validity of the Will, which are dependent on the particular circumstances of your case.  

If you are considering contesting a Will or require legal assistance, advice or representation in a contested Will matter or related matter, please contact us to discuss further.

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