In Western Australia, the challenging of a Will is regulated by the provisions of the Family Provision Act 1972 (WA) (“the Act”).
Who can contest a will?
In determining whether you can challenge a Will, you must determine if you are eligible to do so. To be eligible to challenge a Will you must be one of the following:
- the Husband/Wife of the Deceased;
- the De Facto of the Deceased;
- a dependant entitled to receive maintenance from the Deceased (i.e. child support);
- a child of the Deceased (though there are some qualifications);
- a stepchild of the Deceased (this may be a bit more complicated); or
- a parent of the Deceased.
If you do not fall into any one of the above categories, you will not be able to challenge the Will.
How long do I have to contest a will?
The other important criteria is that application must be made within six (6) months of probate being granted. If that date has passed, you can still apply but you will need to apply for the consent of the Court, which can make things a little complicated.
If you have ticked these boxes, the next step is to bring an application under the Act. All applications to contest a will must be made to the Supreme Court of Western Australia and must answer the following questions:
- whether proper provision has been made for the Applicant’s proper maintenance, support, education or advancement in life; and
- if not, should the Court exercise its discretion to order that provision be made out of the Estate taking into account a range of factors including the position and circumstances of the other beneficiaries.
What are the grounds for contesting a will?
There are often legitimate reasons you may want to contest a will. These can include:
- being left out of the will or having inadequate provision made for you;
- questioning the validity of the will due to lack of mental capacity by the deceased person or fraud, forgery or undue influence by another person;
- the existence of a newer will;
- insufficient or inappropriate witnesses to the will.
Contesting a will can be complicated. An experienced lawyer can advise you on whether or not you may have a claim, what the likely outcome will be and guide you through the process.
Contact our team for assistance if you need to contest a will – learn more about our services here.