My father left everything to his new partner. Can I challenge the will?

May 29, 2026

A common situation — and one the law expressly contemplates.


David is in his mid-forties. His father died six months ago, leaving an estate worth around $5.2 million — the family home in Applecross, a commercial property in Fremantle, and a substantial share portfolio. David's father had remarried eight years ago, and his new wife of seven years is the sole beneficiary under a will made two years after the marriage.


David is not destitute. He has a mortgage, two children in private school, and an income that covers his expenses — but not comfortably. He contributed his weekends for three years to renovating the Fremantle property. He was never told he was being removed from his father's estate.


He wants to know: can he do anything?


The answer, in Western Australia, is yes — he can make a claim under the Family Provision Act 1972 (WA).


What the Family Provision Act does


The Act allows certain eligible persons to apply to the Supreme Court of Western Australia for provision from a deceased estate, even where a valid will exists and even where the will-maker had the capacity and the legal right to distribute their estate however they chose.


The court's task is not to rewrite the will according to what it thinks is fair in the abstract. The question is whether the will (or the intestacy rules, if there is no will) makes 'adequate and proper provision' for the applicant's maintenance, support, and advancement in life. That is a deliberately broad test, and it gives the court significant discretion.


David, as a child of the deceased, is an eligible applicant. The fact that he is an adult does not disqualify him. Western Australian courts have consistently held that adult children can and do succeed in FPA claims, particularly where:

  • The estate is large relative to what was left to the applicant
  • The applicant has genuine financial needs or responsibilities
  • There is a history of contribution — financial, practical, or personal — to the deceased or the estate assets
  • The competing beneficiary (here, the surviving spouse) is already independently provided for


What about the surviving spouse?


A surviving spouse has strong competing claims, and the court will take their needs into account. But 'strong' does not mean 'absolute'. In a $5.2 million estate, it is entirely possible that provision can be made for both a surviving spouse and an adult child — particularly where the spouse has independent assets of their own, a superannuation entitlement, or income-producing capacity.


The outcome depends heavily on the specific facts. That is why early advice matters.


What did David's contribution count for?


Courts in Western Australia and across Australia have consistently held that contributions to an estate — including unpaid labour on estate assets — are relevant to the assessment of a claim. If David can demonstrate the value of the renovation work he performed, and the benefit that accrued to the estate as a result, that will form part of his case.


The time limit


This is critical. A Family Provision Act claim in Western Australia must be brought within six months of the grant of probate or letters of administration. The court has a discretion to extend that time, but that discretion is not exercised readily, and an extension is never guaranteed.


David has six months from the date probate was granted — not from the date of death. If he is approaching that deadline, he needs to act now.


What should David do?


He should obtain legal advice promptly. At an initial consultation, a solicitor experienced in FPA matters can assess the strength of the claim, identify the competing claimants and their likely positions, advise on the deferred-fee options available, and outline the process from first letter to likely resolution.



Most matters of this kind resolve at or before mediation. Full court hearings are the exception. But the process must begin with a clear-eyed assessment of the facts and the law.


If you are in David's position — or something like it — call Reg Biddulph on 08 9398 5533. Initial consultations are obligation-free.

Close-up of a probate sign on a stack of papers and a wooden gavel.

How Long Do Probates in Perth Take and What Can Delay Them?

July 21, 2026
How long do probates in Perth take? Learn the WA Supreme Court timeline, common delays, and capped-fee help from Biddulph & Turley. Call now on 08 9398 5533.
Gavel on a judge’s bench with a Supreme Court sign in the background

When a Will Is Drafted but Not Signed: What a Recent WA Supreme Court Decision Means for Grieving Families

June 4, 2026
Loved one died before signing their will? A WA Supreme Court decision shows an unsigned draft can still go to probate. Call Biddulph & Turley.
Gavel resting on a “Living Will” document in dim light

Mum changed her will three months before she died. We think she was pressured. What can we do?

May 29, 2026
Will changed late in life under pressure? Learn the grounds to challenge a will in WA and why you must act before probate. Call Biddulph & Turley.
Will Contest book beside a gavel, scales, and gold pen on a desk

My brother says he's going to contest the will. What are our rights as beneficiaries?

May 29, 2026
Brother contesting the will? Learn your rights as a beneficiary under the Family Provision Act in WA and how to respond. Call Biddulph & Turley.

I'm the executor and I've received a letter claiming against the estate. What do I do?

May 29, 2026
Received a Family Provision Act claim as executor? Learn why to hold off distributing the estate and how to protect yourself. Call Biddulph & Turley.

The Perils of Informal Wills: Why a Note May Not Be Enough

September 22, 2025
Case Summary: When a Note Isn’t a Will Imagine this scenario: After a loved one passes away, a note is discovered—perhaps on their phone, in a drawer, or scribbled on a piece of paper. The note sets out some wishes about who should inherit their assets. Family members hope this note will be accepted as the person’s will. But when the matter goes to court, the judge decides the note is not a valid will. This situation is more common than many realize. In a recent case, a note titled “Last Will” was found on the deceased’s phone. While it expressed some intentions about distributing the estate, the court refused to accept it as an “informal will.” Why? In the case of Gallotti v Galotti-Brown [2025] WASC 384 a handwritten ‘amendment’ was written on a duly executed will. Was this amendment part of the will? Why the Note Was Not Accepted Australian law (and the law in many other places) allows courts to accept a document as an “informal will” even if it doesn’t meet all the usual requirements (like being signed and witnessed). But the court must be convinced of three things: There is a document. The document sets out the person’s testamentary intentions (what they want to happen to their property after death). Most importantly: The person intended the document to operate as their will. In the case above, the court found that the note was more of a draft or a statement of wishes—not a final, operative will. There was no evidence the deceased intended the note to be their last will and testament. The absence of a signature, witnesses, or any indication that the note was meant to be final all counted against it. The Dangers of Informal Wills Relying on informal documents—like notes, emails, or unsent text messages—to express your final wishes is risky. Here’s why: Uncertainty: Courts may not accept the document, leaving your estate to be distributed according to the law, not your wishes. Family Disputes: Ambiguous or informal documents can lead to costly and stressful legal battles among loved ones. Delay and Expense: Proving an informal will is often more complicated, time-consuming, and expensive than preparing a formal will. How to Protect Your Wishes Make a Formal Will: The safest way to ensure your wishes are followed is to make a formal will, properly signed and witnessed. Review Regularly: Update your will as your circumstances change. Seek Legal Advice: A qualified lawyer can help you avoid pitfalls and ensure your will is valid. Don’t leave your legacy to chance. A simple note may not be enough—take the time to make a proper will and give your loved ones certainty and peace of mind.
Close-up of a hand holding a pen.

Why Updating Wills in Perth Should Be a Priority

August 21, 2025
For expert advice on updating wills in Perth, contact Biddulph and Turley today. Visit our website to learn more.
Smiling female lawyer and senior couple going through will

How to Choose the Right Executor for Your Will in Perth, WA

June 25, 2025
Discover how to choose the right executor for your will in Perth, WA. Click here for essential tips and guidance from the experts at Biddulph & Turley.

Why You Should Never Rely on an iPhone for Your Will: Lessons from the Peek v Wheatley Case

June 11, 2025
In recent years, the rise of technology has made it easier than ever to create, store, and even amend important documents like wills. Many people assume they can simply jot down their wishes on their phone or leave a note in a digital app, believing this to be sufficient for estate planning. However, legal cases such as Peek v Wheatley [2025] NSWSC 554 highlight the dangers of informal, unprofessional will-making—especially when using a device like an iPhone. The Case at a Glance In Peek v Wheatley, the court examined whether a note found on the late Colin Peek’s iPhone could be considered a valid informal will under the NSW Succession Act 2006. The note, titled ‘Last Will of Colin L. Peek,’ was discovered after his death, and it appeared to specify how his estate should be distributed—primarily passing significant assets to a friend and executor, Mr Wheatley. However, the court faced the challenge of determining whether this digital note truly represented Colin’s testamentary intention—that is, whether it was his clear, deliberate wish to dispose of his estate as stated, with the intention for it to have immediate legal effect. When Will a Document Be Accepted as an Informal Will? In most Australian States, a document that does not meet the formal requirements of a will (such as being signed and witnessed) can sometimes still be accepted as a valid "informal will" if certain criteria are met. The key questions are: Did the deceased intend the document to operate as a will? Was the document clearly intended to dispose of the estate? Did the document demonstrate a genuine testamentary intention? In Peek v Wheatley, the court examined whether the note on the iPhone was created with the intention for it to serve as the deceased’s final testament. The court recognized that while the note contained the deceased’s wishes, it was unclear whether the document was intended to take effect, without more (that is without the will making doing anything else). It was possibly a “working document” or a ‘dry run’ that might be amended later by the will maker or simply a document that he intended to pass on to his solicitor to prepare a will based upon it. The Pitfalls of Informal, Digital Wills This case underscores why relying on informal methods—such as notes on a smartphone—is perilous: Lack of Formalities: A valid will typically requires signatures, witnesses, and clear language. Digital notes often lack these formalities, making their validity uncertain. Ambiguity of Intent: A casual note or message may not conclusively demonstrate the testator’s intention for the document to be their final will, especially if created in a moment of emotion or without legal advice. Potential for Disputes: Informal documents are more easily challenged, leading to costly and time-consuming court disputes, as seen in this case. Risk of Misinterpretation: Digital notes can be vague or incomplete, and their meaning can be misinterpreted, especially if they are not drafted with legal precision. Why You Should Have a Lawyer Prepare a Formal Will The Peek v Wheatley case exemplifies the importance of engaging a qualified lawyer to draft your will. A lawyer ensures that your testamentary wishes are clearly articulated, legally valid, and less susceptible to challenges. They will: Use precise language to avoid ambiguity Follow all legal formalities (signatures, witnesses) Provide advice on estate planning tailored to your circumstances Minimize the risk of intestacy or disputes after death Final Thoughts While it might seem convenient to jot down a quick note on your iPhone or leave a casual message, this approach is fraught with legal uncertainty. The law prefers formal, properly executed documents to ensure your wishes are respected and to minimize disputes among your loved ones.  If you want your estate to be distributed according to your wishes, consult a qualified estate planning lawyer. They will craft a robust, legally sound will that stands up in court and provides peace of mind for you and your family. Disclaimer: This article is for informational purposes only and does not constitute legal advice. For personalised estate planning assistance, please contact a qualified lawyer. Would you like me to help you draft a tailored legal will or provide further information?

Should you seek to get probate where the Deceased may not have had capacity?

By websitebuilder • March 13, 2024
The recent case of Diedler v Borowiec 2023 WASC 396 is perhaps a cautionary tale for those beneficiaries of a doubtful will. The Deceased made a will with the Public Trustee in 2018. At the time he has 97 years old. For all intents and purposes, when the will was prepared, the Deceased appeared to have capacity- he lived independently, drove his own car (!) and managed his own finances. He did not want his step son and his own daughter to benefit from his estate. Following a trial , a judge found that the Deceased suffered from delusions at the time he made the will including a belief that his daughter was a witch, was trying to poison him. That she was practising witchcraft and that she flew through his window and was stealing items form him. In fact there had been concerns about his mental health for a least five years prior to him making the will. Following his death, the Public Trustee obtained medical reports and came to the conclusion that the 2018 will was invalid. However, the beneficiaries of the 2018 will were not happy with that decision and decided to seek proof of it by issuing proceedings in solemn form in the Supreme Court of Western Australia. Having lost the case, the question arose as to who should pay the solicitors costs. The court found that, having regard to the medical evidence, it was unreasonable for the beneficiaries of the 2018 will to have sought to prove it. Several offers of settlement (‘Calderbank Offers’) had been made by the beneficiaries of an earlier (1981) will, all of which had been rejected. The court ordered that the Plaintiffs (the beneficiaries of the 2018 will) pay the Defendants costs on an indemnity basis. Those costs would no doubt be very substantial. Although the person seeking to propound the will may have a honest (bona fide) belief that the will is valid, the belief must also be reasonable. On the facts, with the available medical evidence, the court found that the belief was not reasonable and the Plaintiff should bear not only their own legal costs but also the Defendants. As a point of reference, in the Victorian case of O’Donoghue v Mussett [2008] VSC 63, the Plaintiff’s costs were $250,000 up to the third day of a trial. The Defendant’s costs would be similar, so it becomes a very expensive exercise and not on to be lightly undertaken. If you need advice concerning the validity of a will, contact us now.