There are several ways Wills can be contested.

If you have been unfairly left out of a loved one’s Will, you might be able to bring a Family Provision claim for a share of the estate.

Are you able to make a Family Provision claim?

The Family Provision Act 1972 provides the following people may make a claim:

• the current spouse or de facto partner;
• in some circumstances, a former spouse or de facto partner;
• children;
• in some circumstances, stepchildren;
• in some circumstances, grandchildren of the deceased;
• and parents.

In Western Australia, if you are not within one of the above categories, you are not able to bring a claim.

Are there time limits for making a Family Provision claim?

If you think you have been unfairly left out of a Will, or a person dies without a Will, an application under the Family Provision Act 1972 must be made within 6 months of a grant of Probate or Letters of Administration.

If you are going to make a claim, it is important the executor or administrator knows you are making a claim. We recommend advising the executor or administrator as soon as possible.

The timeframe of 6 months has strict application and any application outside of that time requires leave of the Court.

What will the Court consider?

If you can bring a Family Provision claim, the Court will consider many factors before determining whether to alter the division of assets. The factors the Court will consider include:

• your relationship with the deceased;
• the competing claims to the estate; and
• your income, lifestyle, medical needs, and educational requirements.

Challenging the validity of a Will

Alternatively, if you don’t think a Will is valid, you may wish to challenge the Will entirely.

A Will may be invalid if the person making the Will did not have capacity to make the Will at the time they did, for example, due to intellectual disability or dementia.

A Will may also be invalid if it has been executed or signed because of pressure from another person to make the Will that has been made. This is known as undue or improper influence.

If you are objecting to Probate being granted, you will need to have evidence of why the Will is invalid.

If you believe that this might be the case, we recommend seeking legal advice as soon as possible. A lawyer can provide you with advice and assist by lodging a caveat to prevent any grant of Probate without prior notice to you. This will also alert the Court to the concern relating to the document and may prompt the Court to require proof that the Will is valid.

Defending a claim

If you are the executor of an estate, it is your duty to uphold the Will against any claims which are made against the estate. In doing so however, it may be wise to consider settling a claim which is likely to succeed in court, rather than depleting estate funds through excessive legal fees and court costs. In such cases, getting sound legal advice is essential.

Estate disputes and Family Provision claims can be complex and are usually fraught with emotion and conflict. Whether you have been unfairly treated under the terms of a Will or wish to challenge its validity, or you are an executor defending a claim, we can assist you in navigating this difficult path.