Challenging a Will Western Australia
This is a guide to the main steps required for challenging a will in Western Australia. You should obtain legal advice appropriate to your own situation and not rely solely on the contents of this page if you decide to contest a will in Western Australia. The information provided herein is for information purposes only.
What is Challenging a Will in Western Australia?
If you are “challenging a will” or “contesting a will”, you are claiming in Court that, upon their death, a deceased person failed to comply with their duty to adequately provide for you, when they left nothing, or an insufficient amount to you.
You are asking for the Court to award money or property to you that would otherwise have passed under the deceased’s Will, or if they did not have a Will, under the Intestacy Rules.
The name of the law that applies to these claims in Western Australia is the Family Provision Act, 1972.
Key to a Successful Claim to Contest a Will in Western Australia
There are several fundamental things that you need to prove.
Firstly you must fit into the range of eligible claimants: please see below.
You must also establish that the deceased was domiciled in WA, and that any real estate over which you are making a claim to contest a will is situated in WA.
You need to bring your claim to contest a will within six months of the date of issue of Probate. Probate is a document that is issued by the Court when a Court is satisfied that the deceased left a valid will. Once the Probate is issued, the person to whom the Probate is granted is able to wind up the estate, and the time limit begins to run.
If you find that you might be late with your application you should get immediate legal advice, as sometimes it is possible to make an Application to the Court to commence the claim late. If the assets have not been distributed and there is no great injustice to the other beneficiaries, the Court may give you permission to commence your claim to contest a will late.
Legal Obligation to Make Adequate Provision for You
You need to prove that the deceased had an obligation to provide for you on their death. Many people who fall within a category of “eligible claimant”, and who were in close, regular contact with the deceased, should be able to establish that the deceased had an obligation to do this.
However in some situations, not everybody who falls within one of the categories of eligible claimants can claim. For example, the deceased may have no obligation to leave anything to an eligible claimant with whom they have had virtually no contact for many years.
Your Financial and Other Need
You must also show that the deceased did not make adequate provision for you, when judged in the light of your financial and other needs.
You need to establish that your financial situation is such that the deceased should have left more for you than they did.
Even if the deceased was closely related to you, if you are very well off, then the Court may hold that they had no obligation to leave anything to you because you have no financial need.
You must be prepared to divulge financial information applicable to your situation in the Court documents and if you are not prepared to do this, you should not bring a claim to contest a will.
Similarly the beneficiaries named in the Will and any other claimants will need to divulge their financial information.
By each party disclosing their financial and other personal information, the Courts, or the solicitors, when negotiating with each other, can take into account the relative financial need of all parties involved, to come to a solution that is acceptable to the parties, or for the Court to make a decision.
Eligible Claimant for Challenging a Will
To qualify to bring a claim to contest a will you must fit into one of the following categories as an eligible claimant:
· a spouse or de facto spouse;
· certain dependant ex-spouses
· a child of the deceased;
· certain grandchildren;
· a stepchild, 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.
How Much is Available in the Estate to Meet a claim to Contest a Will?
There is no point in bringing a claim against an estate if the deceased owned little or nothing when they died. So, the value of the assets in the deceased’s own name has an important bearing.
Superannuation is a separate matter and you should get your lawyer to advise you if there are substantial superannuation monies, as there is a separate procedure to claim them: see heading below.
Assets
If assets have been improperly transferred from the deceased’s name before they died, it might be possible to obtain a court order that the transfer be reversed so that the asset then forms part of the estate of the deceased.
If assets were owned by the deceased jointly with another person, ownership of the assets will usually pass directly to the other person (the survivor) on the death of the deceased. These assets will not form part of the estate of the deceased and therefore will not be available to pay out any successful claim to contest a will.
Step Children
This can cause an injustice for many children of a marriage if they lose a parent (eg their mother) and their father then remarries and transfers the family home into his name jointly with his new wife (the children’s new step-parent).
This means that if either of them dies, the property will directly pass to the one who survives, outside of the terms of the will of the deceased. In this example, assuming that the father dies first, the house then will not form part of the estate of the father and will be solely the step-mother’s house for all intents and purposes.
When the step-mother dies, the only way that the father’s children can claim their parent’s house is if they fall into category of eligible claims relating to stepchildren. (See Eligible Claimants section above.)
Unfortunately the detailed requirements of that category mean that many people cannot qualify, so that many people in the position of the father’s children will be unable to make any claim to contest a will against the estate of the step-mother. As a result, it is often the step-mother’s family who will inherit.
If this situation may apply to you, we suggest you get legal advice, especially before your parent dies, as some early planning may save you from a lot of stress.
How Caveats Can Help
When we are talking about contesting a Will we are assuming the Will is valid and Probate has been issued, so that the claimant can bring the claim to contest a will.
Frequently, a claimant may allege that the Will that has been produced for Probate is not valid, because it was defectively drawn, the deceased did not have sufficient “capacity” to make the Will (eg because they had dementia) or that they were subject to “undue influence”.
If that is the case please tell your solicitor and they may be able to file a Probate Caveat with the Court. This should prevent the will being accepted for Probate until you have had the opportunity to check the will to see if it is valid. This way you can resolve the validity issue before you go ahead and contest the Will.
If the alleged Will is invalid, a previous Will usually comes back to life, and under the previous Will you may get a substantial share anyway. If that is the case you may not need to commence a will contest after all.
If there are any concerns about the validity of the Will, ask your solicitor about lodging a Probate Caveat as soon as possible. If you fail to do so early, you may lose valuable rights. Your solicitor can also advise you of the consequences for you, if in fact the will is invalid.
Putting a caveat on the Title to real estate may prevent the property being sold before all will disputes and claims are resolved. You should get specialised advice, as it may not be necessary and may in fact result in things taking longer to resolve.
Superannuation
Superannuation does not normally form part of the deceased’s estate but it may be claimed under separate rules.
Ask your lawyer to give you advice on this as you may be eligible to claim against all relevant superannuation funds as well as through a will contest.
Different rules apply to each, and you may find that you are qualified to claim some of the superannuation money, even if you cannot contest the will.
In many cases substantial amounts are held in superannuation, so this possibility should not be overlooked.
Who pays the Legal Fees?
Normally you need to pay for your own legal fees, and the estate will pay for theirs.
If the matter goes to Court, the Court will need to make a decision as to who should pay the legal costs and the general rule is that if you are successful with your claim to contest a will, then you will get the majority of your legal costs back from the estate.
Conversely, if you were unsuccessful, you will probably need to pay a substantial part of the estate’s legal costs. Ask your lawyer about getting insurance to cover this risk.
With many solicitors, a claimant will need to pay their own solicitor’s fees, even if the claim to contest a will was unsuccessful.
If you go into a No Win No Fee arrangement with your own solicitor, you should only be charged professional fees if the claim to contest a will is successful and the settlement funds received as a result of the legal action are sufficient to pay the fees.
Call us about CWPL’s No Win No Fee plan, or Click here for more general information on No Win No Fee arrangements.
Factors the Court Takes into Account When Deciding on a Claim to Contest a Will
The relevant factors that a court will consider when deciding on your claim to contest a will include:
· The value of the asset pool available for distribution to you and the beneficiaries named in the Will.
· The extent to which the deceased may already have provided for you during their life or promised to do so.
· The contribution made by you to the life of the deceased, both in financial and non-financial terms: clearly the greater the contribution made by you, the stronger your claim to contest a will.
· Whether you have financial need, and how much that need is.
· The financial and other needs of the beneficiaries named in the Will.
Negotiations and Mediations
All Will contests that are commenced in the Courts in WA must go for a compulsory mediation conference, usually run by the Court, prior to a Judge making a decision.
The vast majority of these claims are settled in conferences, which saves a lot on legal costs, and removes a lot of uncertainty and anxiety for both parties.
If a claim to contest a will is settled in a mediation, it is unusual for any of the parties to feel that everything went entirely “their way”. However, a mediation can result in a settlement that is on terms that are favourable to both sides. Firstly, there is the certainty of knowing that the claim is over and each party knows what their position is and how much they get or need to pay. Secondly, an acceptable result has been achieved without the added expense and stress of a trial at court, and without the uncertainty of how the decision will turn out.
Remember: if a judge has to make a decision, there is invariably one party who is considered to be a “winner” and one who is considered to be the “loser”. With mediation the result is usually in between. Also, the reduced costs to the Estate means there is a lot more to go around due to the savings in legal fees.
As a mediation usually occurs at a relatively early stage, the legal costs of claim to contest a wills can be more than halved if the claim is settled at mediation.
In order to settle at mediation it is still necessary for the solicitors to prepare court documents such as Affidavits and statements, as this sets out the position of both parties and enables both sides to evaluate the strength of the other side’s claim, and how best to bring a settlement.
The mediation is usually conducted with a Registrar of the Court in WA, but sometimes no Court official participates, and a professional mediator is appointed instead. In addition, each side will have their own legal team, usually their solicitor and a barrister.
The mediator will usually conduct a small joint conference involving all parties. After that, both sides often move to separate rooms, and their lawyers act as go-betweens, working together with a view to settling the case themselves. Usually the parties do not have to meet face to face again.
The vast majority of cases settle at mediation, leading to huge savings on legal costs.
Selecting a Lawyer
It is important that you select a lawyer that really meets your needs, and a good test is whether your lawyer is available to chat to you right from the beginning. If you cannot speak to your lawyer at an early stage for a proper assessment of your claim to contest a will, look elsewhere.
Contact CWPL for expert legal advice on challenging a will in Western Australia.
Our WA office is located at:
Regus St Martins Tower
Level 27
44 St Georges Terrace
Perth, WA, 6000
Phone: (08) 6102 6578
Fax: 1800 677 882
Intl. Fax: +61 3 8352 4321
