In Western Australia (WA), contesting a Will is a complex process involving nuanced laws. This article will answer some of the most common questions people may have when considering contesting a Will in WA. The information is general in nature only, and we recommend you obtain professional advice relevant to your circumstances.
What Does It Mean to Contest a Will?
It is important to distinguish between ‘contesting a Will’ (called a Family Provision Claim) and ‘challenging a Will’.
You may challenge a Will because you have reason to believe that there is something invalid or fraudulent about the Will, and you are asking the courts to investigate this possibility. In contrast, you contest a Will under a Family Provision Claim when you feel that you have received inadequate provision in that Will.
Am I Eligible to Contest a Will in Western Australia?
In WA, the Family Provisions Act 1972 (WA) restricts the categories of individuals who can contest a Will. Most significantly, spouses, de facto partners, and children are eligible to make Family Provision Claims, with additional categories including people who were financially dependent upon the deceased. The logic for such categories being that if you were receiving support from someone and they die, it may be reasonable for you to expect to continue to receive that support in the form of a provision in their Will.
If you fall into one of the clear categories (that is, you are the spouse or child of the deceased) and believe you have not been adequately provided for in their Will, you are likely eligible to make a Family Provision Claim. If you do not fall into one of those two categories you should speak to an experienced lawyer to determine if you could be considered an eligible dependant based on your prior relationship with the deceased.
What is the Time Limit for Contesting a Will?
In WA, time limits for contesting a Will are enforced strictly. Generally, you have six months from the date probate in the estate of the deceased is granted in which to file a Family Provision Claim. As such, it is crucial to seek legal advice promptly if you are considering contesting a Will.
In some cases, the court may grant an extension of time and allow a late Family Provision Claim to be filed. This is more likely when the delay was genuinely outside the control of the claimant (such as if they were unaware of the passing of the deceased or they received incorrect advice). However, it is best not to rely on obtaining an extension of time and ensure that claims are filed promptly.
Will I Have to Go to Court?
Many Family Provision Claims are settled outside of court. The executor of the estate of the deceased has the power to settle a Family Provision Claim, and it is often the case that an executor will sensibly reach a compromise between all the claimants against a deceased estate. This process is often facilitated by lawyers for both the executor and the claimant, who reach an agreement based on the likely outcome if the matter did proceed to a court hearing.
It is also possible for the matter to proceed to a mediation instead of and prior to any court proceedings. This involves a neutral third-party facilitating discussions between the parties to reach a mutually acceptable agreement. Mediation can be a more cost-effective and a less adversarial approach compared to court proceedings. The court will often encourage (or even require) parties to attempt mediation before proceeding to trial.
What are the Costs Involved in Contesting a Will?
Ideally, a Family Provision Claim will be settled early in the process, reducing the overall legal costs involved. To prevent accruing unnecessary legal fees, it is important to seek an initial consultation with a lawyer regarding your chances of success. In every case, it is crucial to discuss fees and payment structures with your chosen lawyer before proceeding.
What Factors Does the Court Consider?
Sometimes contesting a Will does involve court proceedings, and in such cases the court carefully considers the evidence presented. The court aims to balance the testamentary freedom of the deceased (that is, their right to leave their property as they prefer) with the legitimate claims of eligible persons raising the Family Provision Claim.
Factors such as the financial and personal circumstances of the claimant, the size of the estate, and the deceased’s relationship with the claimant are taken into account. The court’s primary goal is to ensure that adequate provision is made for eligible persons in a just and equitable manner.
What About No-Contest Clauses?
Some Wills include a so-called ‘no-contest’ clause, which attempts to discourage beneficiaries from contesting the Will. In WA a no-contest clause is not binding and is generally struck out from a Will (it does not invalidate the Will).
Can I Contest an Intestate Estate?
If the deceased did not have a valid Will, their estate will be distributed according to the intestacy laws of WA. In some cases, eligible persons may still make a claim for further provision under the Family Provision Act 1972 (WA) if they believe the intestacy laws do not adequately provide for them.
Conclusion
Contesting a Will in WA is a legal process that requires careful consideration of the specific circumstances and applicable laws. It is advisable to seek professional legal advice early in the process to understand your rights, assess the merits of your case, and navigate the complexities of Will contests. Remember, time is of the essence, so if you believe you have grounds to contest a Will, consult with a legal professional promptly to ensure you meet the statutory deadlines.
If you or someone you know wants more information or needs legal help or advice, please call 08 9336 6300 or email [email protected].