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Challenging a Will in WA

There are various legal ways of challenging a Will in WA. When someone asks a solicitor “How do I contest a Will?” they can be asking for a number of reasons. This is why a solicitor will usually respond by asking that person whether they believe the will was valid, and then asking the person whether they believe the will was fair. The answer to these questions then determines what course of action the solicitor will recommend.

In Western Australia, there are various grounds on which you can challenge a Will.

Challenging a Will in WA on the basis that it is invalid

Family members, dependents, and beneficiaries named in a Will may doubt that the will is a valid document, and therefore that it should not stand as the testator’s (the will-maker’s) last Will. This could be because they suspect that the testator did not have capacity to make the Will (for example, if he or she had dementia or had an intellectual disability), or they suspect that the Will was executed under duress, or that the testator was coerced into making the Will, or that someone unduly influenced the testator when making the Will.

If you suspect that something is wrong with a Will and that probate should not be granted, you should speak with a solicitor as soon as possible about the possibility of lodging a caveat with the Probate Registry of the Supreme Court of Western Australia, to prevent probate from being granted without prior notification to you. The Court may then require the executor to prove the Will in solemn form, which is a hearing before a Judge or Master of the Court. If you are objecting to probate being granted, you will be required to adduce evidence as to the testator’s testamentary and/or evidence of duress, coercion or undue influence exercised over the testator.

Once probate is granted for a Will, the presumption is that the Will is a valid document and the executor may administer the Estate in accordance with the Will’s instructions. It is then very difficult to revoke the Will. However, if you are a beneficiary or a potential beneficiary with questions concerning the administration of the Estate by the executor and the fairness of that process, you should discuss with a solicitor the possibility of recourse via the Administration Act 1903 or the Trustees Act 1962.

Family provision claims under the Family Provision Act 1972

Many people will ask a lawyer how they can contest a Will because they believe that a Will is unfair, and that the testator had a moral obligation to make further provision for them under his or her Will. The Family Provision Act 1972 was enacted so as to allow certain relatives, dependants and partners of the deceased person to apply to the Supreme Court of WA for an order for further provision from the deceased’s estate.

You must bring an application for further provision within six months of the grant of probate. This is a very strict time limit and if you file outside this time frame, you must first apply for leave for the Court to consider your application. You must also be an “eligible person” under section 7 of that Act in order to bring a claim against the deceased’s estate. This is known as the jurisdictional test.

The second test – which involves consideration of multiple factors – is the “adequacy test”, where the Court determines whether or not the deceased did make adequate provision under his or her Will. The Court will look at matters including: the claimant’s income, lifestyle, medical needs, educational requirements, the closeness of the claimant’s relationship with the deceased, and whether or not there was financial dependence or interdependence between the claimant and the deceased. The Court will then weighs this up against the interests of all the other beneficiaries under the Will and any other claimant contesting the estate. Crucially, the Court will consider the size and the nature of the estate and whether it has the ability to meet all competing claims. If the Court determines that the provision was inadequate, then it has discretion to make an order for further provision as it considers fit.

Moral obligations of the testator

The leading case in Australia regarding the principles underlying family provision claims is a case which originated in Western Australia and was appealed to the High Court. In the case of Vigolo and Bostin [2005] HCA 11 the High Court was asked to consider whether the testator had a “moral obligation” to provide for the claimant. In that case the Court concluded that a person cannot bring a claim based on a moral obligation alone, and they must pass the “adequacy test” which requires the claimant to demonstrate that they were left with inadequate provision.

In recent times, Courts have talked about the possibility that a testator does have a moral obligation to provide for certain people and/or that there are community expectations regarding what provision a wise and just testator ought to have made. A recent case in WA which touches on this is Mead v Lemon [2015] WASC 0071. You can read our blog article on that decision here.

In any event, the Court has a wide and unfettered discretion to determine what it thinks is adequate provision for a particular claimant, depending on the individual circumstances of the case.

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