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Disputing A Will In Perth

At Go To Court Lawyers, the contested wills team understands the legal difficulties that can arise following the death of a loved one or family member. Sometimes there is cause to suspect that a will is not valid, and sometimes it is necessary to contest the provisions of a will in order to ensure a fair outcome. This article outlines the different approaches to disputing a will in Perth.

Disputing A Will In Perth: Challenging The Will

Typically, one of the first steps after someone dies is for their executor to apply to the Supreme Court of Western Australia for a Grant of Probate to prove that the will is a genuine and valid testamentary document. If someone intends to dispute the validity of a will in Perth, it is vital that they act quickly to secure a probate caveat. This notice prevents the court from probating the questionable will and gives the caveator some time to prove their argument about the validity of the will to the court.

There are four main situations that can give rise to a dispute over the validity of a will in Perth.

First, a will may be disputed when there is reason to believe that the deceased was not capable of making a will because of mental impairment. In that case, it is possible to challenge the will on the grounds of testamentary incapacity.

Second, disputing a will is possible if the testator was of sound mind but was unduly pressured to make a will that was contrary to their true testamentary intentions. In particular, the validity of a will may be questioned if a professional adviser or caregiver has been made the major beneficiary of a will in preference to the family of the deceased.

Third, a dispute can arise if a later valid will is found. In this case, the court may issue a court order to set aside the earlier will and validate the later will.

Finally, a challenge may be made if there is any suspicion that the will is the product of fraud or forgery. If such a suspicion is proved, the court may probate an earlier will or stipulate that the estate is distributed according to intestacy legislation.

Disputing A Will In Perth: Family Provision Claims

Proper estate planning ensures that all dependents and loved ones receive adequate and proportional provision from the deceased estate. When an entitled person is excluded from a will or receives less than a reasonable provision, they can make a Family Provision Claim to the court. The list of entitled claimants is not exhaustive so it is important to consult an experienced solicitor to talk about disputing a will in Perth. Go To Court’s team can provide clear advice about the legal process and the likelihood of success in disputing the will in this fashion.

The first step in disputing a will through a claim is to establish eligibility. Essentially, only close family members and dependents can launch a Family Provision Claim in Perth.

Once eligibility is established, the claimant must prove that the testator had a responsibility to provide for them, and failed to make adequate arrangements for the claimant’s proper maintenance and advancement in life. The court will assess the claim against a range of criteria, including the claimant’s financial circumstances, the nature of the relationship between the claimant and the deceased, and the strength of other claims against the estate. If the claimant is able to substantiate their claim, the court is empowered under the Family Provision Act 1972 to vary the terms of the will and redistribute the assets of the estate in whatever proportion they deem appropriate.

Disputing A Will In Perth: Costs

Disputing a will in Perth incurs certain unavoidable costs. A caveator or claimant against the estate is responsible for their own legal and filing costs, while the estate assumes responsibility for the cost of defending against the legal action. Should the dispute reach the stage of a court proceeding, the court can order that one of the parties must reimburse the other party for some or all of these incurred costs. In civil disputes, it is common for the court to make cost orders that “follow the event”, so that the unsuccessful side pays the other party’s costs. In the interests of a fair outcome, the court will sometimes deviate from this pattern in contested will cases.

Disputing A Will In Perth: Time limits

An interested party can question the validity of a will at any time. While it is obviously preferable to intercede before anyone can act on the terms of an invalid will, it is possible to successfully dispute a will even if the court has already issued probate on a will and the executor has distributed the estate. In that event, the court will revoke the Grant of Probate and attempt to recoup the distributed assets.

In contrast, there are strict time limits that apply to disputing a will through a Family Provision Claim. In Perth, a claimant only has six months to inform the executor and file an application with the court. The court will only hear a claim after that deadline in very narrow circumstances, when the claimant can excuse the delay.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.


Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.

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