Contesting a Will

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Contesting a Will

Contesting a Will

Make an appointment with an experienced wills and probate lawyer by using the form below.

Interesting Fact

In 2014, WA iron ore heir Michael Wright died leaving in his will about $400 million each to his daughters Alexandra and Leonie, $18.2 to his son Myles but only a maximum payout of $3 million from a trust for Olivia, his youngest daughter. Olivia had been born following a short relationship between Wright and her mother. She did not have much contact with her father. In 2015, Olivia launched a family provision claim that Wright failed to make proper and adequate provision for her. It was reported that in the claim, Olivia had expressed a desire for a US$1.2 million piano, a $250,000 bass guitar and Jimmy Choo shoes. What is less well known is Olivia challenged the will as Wright set up a trust for Olivia with strange conditions and with a possibility that she would receive nothing. The trust was to provide “up to $3 million” with the trustee having the power to distribute these funds to charity instead of Olivia. It also included a clause which stipulated that Olivia would lose her inheritance if she was involved with a religious body unless it was a traditional Christian faith. At the end of the hearing, the Supreme Court of Western Australia found that Olivia had not been adequately provided by Wright and awarded her $25 million, the largest payout in Australia for a family provision claim. The estate has now filed an appeal against the payout.

Most estates are far smaller than that left by the late Michael Wright.  Whether the estate is large or small, the central question for inheritance claims is whether the deceased’s dependents have been properly and adequately provided for by the deceased.  The size of the estate, the financial circumstances of the beneficiaries and the duty of the deceased to provide for the claimant are all factors to be investigated to determine whether there are merits to launch Court proceedings.

Your Question

My family member has died but did not leave me anything to me.

How can I challenge the will?

The Law

The deceased may have a will but has left you entirely out of the will or has made only a small gift to you.  You feel that the deceased has failed to provide for you properly and adequately.  Alternatively, the deceased did not make a will and you feel that your entitlement under the law is inadequate in the circumstances of your case.  In both these situations, you can make an inheritance claim or what is known in legal terms as a “family provision claim” provided you fall within the criteria set out under the Family Provision Act 1972 (WA).

In order to launch a family provision claim, you need to fall within the category of “eligible persons”.  The following are “eligible persons” under section 7 of the Family Provision Act 1972 (WA) who are entitled to make an inheritance claim:-

  • a spouse or de facto partner of the deceased person;
  • a person who was receiving or entitled to receive maintenance from the deceased as a former spouse or former de facto partner of the deceased;
  • a child of the deceased living at the date of the deceased’s death, or born within 10 months after the deceased’s death;
  • a parent of the deceased.
  • a grandchild of the deceased: –
    • who was maintained by the deceased immediately before the deceased’s death; or
    • who, at the date of the deceased’s death, was living and one of whose parents was a child of the deceased who had predeceased the deceased; or
    • who was born within 10 months after the deceased’s death and one of whose parents was a child of the deceased who had predeceased the deceased;
  • a stepchild of the deceased who was maintained or entitled to be maintained by the deceased immediately before the deceased’s death;
  • a stepchild of the deceased, if:-
    • the deceased received or was entitled to receive property from the estate of a parent of the stepchild, otherwise than as a creditor of that estate; and
    • the value of that property, at the time of the parent’s death, is greater than the prescribed amount which at the current date is $460,000;

If you are an eligible person, your next step is to prove to the Court that the deceased had failed to make proper and adequate provision from the estate for you.  The Court may, at its discretion, make a provision for you out of the estate of the deceased as the Court thinks fit

More specifically, section 6 of the Family Provision Act 1972 (WA) states that “if the Court is of the opinion that the disposition of the deceased estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.”

The time limit to make a claim is 6 months from the date of the grant of probate or administration.

Matters for Consideration

To make an inheritance claim, you must prove to the Court that:-

  • you are an “eligible person”; and
  • the deceased had failed to make adequate provision for your proper maintenance, support, education or advancement in life.  

What is “adequate provision” is a subjective matter and the Court assessing the claim would take into account all the circumstances of the case including:-

  • the financial circumstances of the claimant and the beneficiaries under the will;
  • the size of the estate of the deceased;
  • the expectation of the community;
  • the relationship of the parties;
  • the duty of the deceased to provide for the claimant.

If you are an “eligible person” and can prove that the deceased did not provide you adequately in the will, you have a potential claim for provision out of the estate of the deceased.

The merits of a family provision claim may be further complicated when the claimant is estranged from the deceased or the relationship is marred by the poor behaviour of the claimant towards the deceased.   The claimant may not have had anything to do with the life of the deceased for years or may have in fact abused or acted badly to the deceased.  In these situations, the Court must weigh the circumstances of the conduct of the child against the need for the child to be granted provision from the estate.   The Court will look at the reasons behind the estrangement or the child’s poor behaviour towards the deceased to determine in the light of the prevailing community standards whether the child is now disentitled to make a claim for provision from the estate.

As there is a time limit of 6 months from the date of the grant of probate or letters of administration to launch a family provision claim, you must act expeditiously before your claim becomes time barred.

Another way of challenging a will is on the basis that the maker of the will lacked mental capacity at the time when the will was drawn up.   The challenger has to show that the mind and memory of the maker of the will lacked sufficient capacity to understand the financial implications of the terms of the will at the time when it was executed.  The challenger must be able to produce medical evidence to support this submission.  If the will is found to be invalid, the will not be followed.  Instead, the estate will be considered “intestate” and distributed according to entitlements under the law. 

Appointment

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What Is The Legal Help Project?

The Legal Help Project is an outreach initiative of Robertson Hayles Lawyers providing affordable initial legal advice to the community in areas of the law impacting on the individual.   Robertson Hayles Lawyers is a legal practice based in Perth with more than 50 years of service to the Western Australian community.

Note

The above content is only intended to provide a general overview of the topic discussed. It is not intended to be comprehensive nor does it constitute legal advice. You should seek legal advice specific to your circumstances before acting or relying on any of the above content.



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