How to Contest a Will in WA

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Copyright © 2014 Contested Wills and Probate Lawyers

The expressions “contesting a Will”, “Will contest” or “challenging a Will” are commonly used when you are claiming that the Will is unfair, insofar as the person who died had an obligation to leave something to you and that they have failed to leave anything, or not enough, to you. 

To contest a Will, you will need to make a claim in the Court against the deceased person’s estate for a share of the estate. This is commonly called a Family Provision Claim. In Western Australia the legislation governing Family Provision Claims is the Family Provision Act 1972 (WA).

What you are in effect claiming is that the deceased failed to make adequate financial provision for you, and you must therefore establish that you have a financial need to justify the claim.

What does contesting a Will mean?

How do I choose a solicitor?

You should only go to a solicitor with whom you feel confident. Choose a solicitor that:

• Is well known for doing estate litigation. An experienced solicitor can often resolve your claim more quickly than an inexperienced solicitor.
• Consider a specialist lawyer. Terry Johansson is an Accredited Specialist in Wills and Estates in both New South Wales and Victoria, and only works on estate litigation cases. He practices in all mainland states.
• Is responsive to your needs.
• Above all, you should only go to a solicitor you trust, and one whom you feel will understand your needs. If you do no feel confident with your solicitor, this will make it very difficult to manage your claim. 

Terry Johansson

Accredited Wills and Estates Specialist, Victoria and New South Wales

What do you need to prove? 

To succeed in contesting the Will you need to prove
the following:

1. That the deceased was domiciled in Western Australia;
2. That the deceased had assets in Western Australia;
3. That you are eligible to contest the Will;
4. That the deceased was obliged to make adequate and proper provision for you; and
5. That the deceased failed to make adequate and proper provision for you.

How is Adequate Provision determined?

Adequate provision for your proper maintenance and support means an amount that is sufficient to enable you to live comfortably and decently according to the standard of living that you have become accustomed to during the deceased’s lifetime. The Court will give consideration to such factors as:

• Your accomodation needs
• Your medical expenses
• Any debts owed
• Future contingencies you may face

If the Court determines that you have need, and has determined that adequate provision has not been made by the deceased for your proper maintenance, education or advancement in life, the Court will then determine whether it should make an Order based on the facts then known to the Court. The application of the law can be complex, and the various tests may make it difficult for some claimants to justify making a claim. CWPL can help you work out if you should make a claim.

Who is eligible?

You will be eligible to contest the Will if you are:

• A spouse or de facto spouse;
• Certain ex-spouses;
• A child of the deceased;
• A grandchild who was being maintained by the deceased, and was either living or born within 10 months of the deceased's death and whose parent was a child of the deceased who predeceased the deceased;
• A step-child if the deceased received or was entitled to receive certain property from the estate of a parent of that step child; or
• A parent of the deceased.

An important factor is how much is in the estate, as this determines the size of the “pool” of money, that is available, and from which you can be paid. The estate comprises those assets that were owned by the deceased when they died and which still remain after all debts have been paid.

What is the value of the estate?

What is mediation outside of the court system?

If the estate agrees, you can often have your claim settled at a Private Mediation, without a court hearing. A Private Mediation can reduce legal costs substantially and virtually remove any risk that you may have to pay the Estate’s legal costs if you were not successful. An independent mediator is appointed to act as a go between for the parties, and you can still have CWPL act as your lawyer in the mediation, to get the best possible result for you.

3 obligation-free steps to qualifying

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Contesting Wills in WA FAQs

How do I confirm that I qualify?

Confirming whether or not you qualify is simple:

How much am I likely to get?

Each case is different, and many factors will determine how much the Court may order the estate to pay you. The factors that the Court will take into account include:

• The size or the estate
• Any benefits already provided to you by the deceased during their lifetime
• Any financial and non-financial contributions made by you to build the deceased's finances and their personal welfare
• Your own financial needs
• The needs of the beneficiaries named in the Will
• Any promises made to you by the deceased before they died
• The provisions the deceased put in the Will. 

If you are successful, the Court will usually order the estate to pay an Award to you from the estate. The Court may also order the estate to reimburse you for a percentage of the legal fees that you must pay to your solicitor. If the case settles out of court, the payment for the legal fees is often added to the amount you are being paid, and the total is called ‘settlement monies”. In the light of all of the factors, the main thing that the Court will ask is whether the deceased has made adequate provision for you.

Do you need legal advice?

If you are going to contest a Will you should get legal advice. Not only do you need to establish whether you are eligible to contest the Will in the first place, but you also need to gauge how strong your claim is. If you contest the Will without first receiving legal advice and your claim is not successful, you could end up with a court order where you pay the costs of the trial and the other party. This could be in excess of $75,000.

What do I need to know?

Before you rush into contesting a Will, there are some things that you need to know. Contesting a Will is an intensely personal legal proceeding and some people find it very emotional. You should be prepared to provide a full history of your relationship with the deceased and the people close to you, as well as full details of your personal finances, and those of your spouse/partner. This information is important to your claim and will be included in your witness statement.

Disclaimer: The contents of this site are for your information and are not legal advice. You should not rely on the contents but get legal advice from a lawyer, in the light of your own specific needs and tailored to your own personal situation. Liability limited by a scheme approved under Professional Standards Legislation.

NB, Western Australia

IS & FS,  Western Australia

What are the time limits? 

Strict time limitations apply. 

Your application to the Court to contest the Will MUST be made within six (6) months of probate being granted.

If you do not commence your claim within this time limit, you may lose your rights entirely. In certain circumstances, your lawyer can make a late application to the Court for you to protect your rights. If your application is late, contact a lawyer immediately.

CWPL is skilled in making late applications and can quickly advise you of the chances of success.

What steps will my solicitor take?

Your solicitor will take a number of steps that require their legal knowledge and experience. These include: 

• Gather information about the deceased, the Will and the Estate, including copies of documents.
• Contact the solicitors for the Estate or the executor and submit the basis of your claim. 
• If necessary, make an application to the Court.
• Arrange statements for you and any witnesses.
• File your application with the Court.
• Attend the first court date on your behalf.
• Exchange statements with all parties of the claim. You will be served with the response from the estate, which normally sets out why they consider that your claim would fail. Some responses can be hostile and upstetting to you, so you will need to be prepared. 
• Prepare for a mediation. Meditation is an informal meeting presided over by an independent and impartial person. You will need to attend mediation with your solicitor. It is compulsory for a mediation to be held in Western Australia and most claims settle at this stage. 

If your claim is not settled at mediation, the solicitor will need to:

• Conduct a further exchange of information between the parties.
• Prepare for trial. You will receive a court date when your claim will be heard by a judge who will decide whether you should have a share of the estate.
• Attend any trial with you. 

Your solicitor should try to settle your Will claim on terms that are acceptable to you, without necessarily commencing court proceedings. However, from CWPL's experience, it will usually be necessary to commence proceedings in order to get the estate to take the claim seriously.