My brother says he's going to contest the will. What are our rights as beneficiaries?
Being named in a will does not guarantee what you receive. But it does give you rights.
When Helen's mother died, the will was clear. Helen and her sister had been named as equal beneficiaries of an estate valued at just under $6 million. Their brother Robert — who had borrowed substantial sums from their mother over the years, none of it repaid — received nothing. Their mother had been explicit about why.
Robert announced, at the funeral, that he intended to contest the will.
Helen came to us with two questions: could he do it, and what could she do about it?
Can he contest the will?
Robert, as a child of the deceased, is an eligible person under the Family Provision Act 1972 (WA). He has the right to make an application. Having the right to apply is different from having a strong claim — but it means that Helen cannot simply dismiss the threat.
The relevant question is whether the will makes adequate and proper provision for Robert's maintenance, support, and advancement in life. The court will look at Robert's financial position, his needs, the size of the estate, and all the circumstances of the relationship — including the loans.
What can the beneficiaries do?
Named beneficiaries under a will are not passive observers in FPA proceedings. They have a direct financial interest in the outcome, and in most cases they will want to participate actively — either by being joined as parties to the proceedings, or by providing evidence and instructions to the executor.
As a beneficiary, Helen can:
- Provide evidence about the nature of the relationship between her brother and her mother
- Adduce evidence of the loans — amounts, circumstances, any written acknowledgments — which will be relevant both to Robert's 'need' and to the court's assessment of the deceased's conduct toward him
- Give evidence about her own financial circumstances and needs, which form part of the competing claims analysis
- Participate in any mediation with proper legal representation
The loans: a significant factor
The outstanding loans are potentially very significant. If Robert received substantial financial benefit from the deceased during her lifetime — and particularly if those benefits were not matched by equivalent provision to other family members — this will be taken into account by the court. It may substantially reduce, or in some cases extinguish, an FPA entitlement.
The court looks at what has already been received, as well as what is being claimed. A child who received $400,000 in advances during the deceased's lifetime, against an estate of $6 million, is in a very different position from a child who received nothing.
What about the cost?
Defending an FPA claim involves legal costs. In most matters, costs are paid from the estate — which means that a successful defence reduces what that process has cost the beneficiaries, but the net position depends on the overall outcome. An early, reasonable settlement is almost always preferable to a full hearing, if the terms are acceptable.
Helen and her sister needed to understand the realistic range of outcomes before deciding how hard to defend. That is exactly the kind of analysis we provide at an early stage.
The outcome
Many FPA matters that look alarming at the outset resolve at mediation. A realistic assessment of what Robert could expect from the court — given the loans, his financial position, and the strength of the competing claims — may well lead to a modest settlement that costs less than the alternative. Or, if the circumstances justify it, a firm defence.
If you are a beneficiary facing a challenge to a will, call Reg Biddulph on
08 9398 5533. We act for beneficiaries as well as claimants, and the initial consultation is obligation-free.
