Who Can Contest a Will? (WA)

In WA, the categories of person who can contest a will include the deceased’s closest relations and dependents. The Family Provision Act 1972 allows for these people to make a Family Provision Claim against a deceased estate in WA. This article outlines who can contest a will in WA.

Who Can Contest A Will In WA?

Under section 7(1)(a) of the Family Provision Act 1972, certain people can make a Family Provision Claim for provision from a deceased estate or for a greater portion of the estate than provided for them in the will. If the Supreme Court concludes that the claimant is entitled to more provision than the testator made in the will, it can make an order for redistribution of the estate so that the claimant receives a greater share.

Spouses

A spouse has priority rights to contest a will in WA. ‘Spouse’ includes a husband or wife or a person who was living with the deceased in a de facto partnership. A de facto relationship is defined in the Family Law Act 1975 as two persons who are not related or married, but who live together as a couple on a genuine domestic basis.

A former spouse or partner can only contest a will if they were entitled to receive maintenance or were already receiving maintenance from the testator before their death. This maintenance may be court-ordered or through another form of agreement.

Children

The deceased’s biological child has an absolute right to contest their will, as long as they were alive when the testator died or were born not later than ten months after their death. If the deceased adopted a child in accordance with the Adoption Act 1994 then the child has the same rights as a biological child.

Stepchildren

A stepchild does not have an absolute right under legislative provisions to contest a will in WA. A stepchild must meet certain criteria in order to be eligible to lodge a Family Provision Claim. If the testator was maintaining the stepchild before their death, then the stepchild can bring a claim. There is also provision that allows for a stepchild to contest a will if the testator inherited property worth more than the prescribed amount from the deceased estate of the stepchild’s natural parent (other than as a creditor).

Grandchildren

A grandchild of the testator can file a Family Provision Claim, but only in limited circumstances. One of the accepted conditions for a claim by a grandchild is if the testator was maintaining the claimant to some extent before their death. The other circumstance where a claim may arise is where the grandchild’s parent predeceases the testator, in which case the grandchild has a right to claim against the testator’s estate in place of their deceased parent. Both a grandchild born before the passing of the testator and a grandchild born in the ten months after their death may be eligible to claim under these conditions.

When can A Parent Contest A Will?

In WA, a parent can be an eligible claimant against a deceased estate, depending on whether the testator acknowledged the relationship. A recognised parent of the testator can claim irrespective of whether the testator was conceived in a legal marriage.

A Dependent Can Contest A Will

The last category of eligible claimant is any person who was financially dependent on the testator. The claimant must be able to produce evidence that they were entitled to or receiving financial maintenance from the testator.

Time Limits for Contesting A Will

The eligible parties specified above must contest the will within statutory time frames. A claimant has six months from the date probate was granted to lodge a Family Provision Claim in WA. The court will not hear a claim after this date unless the interests of justice require the court to give leave for the claimant to file outside the filing date. Many states in Australia will not hear a claim after the estate has been distributed, but the Supreme Court of WA can allow an out of time claim, and even make an order under section 65 of the Trustees Act 1962 to retrieve the asset (or equivalent value) from a beneficiary in certain circumstances.

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

Author

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 Armstrong Legal in 2020.
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