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Contested Wills & Probates
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CONTESTED WILLS IN PERTH
A contested will or probate refers to the legal process of challenging the validity of a deceased person's last will and testament. This can occur if someone believes that the deceased did not have the mental capacity when making their will, or that they were subjected to undue influence from another party or that the will does not make adequate and proper provision for them.
Contesting a will is an difficult and lengthy process. It is important to seek the help of experienced legal professionals who can guide you through the process. If you believe that you are entitled to a portion of the estate, then making a claim may be in your best interests.
Here at Biddulph & Turley, we have the legal expertise necessary to assist you with probates and contested wills, and we are proud to offer our expert services to those in and around Perth. Continue to explore this page to find out more about how this legal process works.
DISPUTES OVER A WILL CAN ARISE IN THE FOLLOWING CIRCUMSTANCES:
- Over the Will itself – Was it validly made? Did the person making the Will have capacity? Was it forged or made under duress?
- Are the amounts left in the Will fair?
- Are the Executors/Administrators administering the estate properly?
- Is a person entitled to claim as a “de facto” spouse of the deceased?
THE EXISTENCE OF A WILL
It is not uncommon that the person who is the likely Executor refuses to provide a copy of a Will (or even to deny any knowledge of the existence of a Will) to a person who would reasonably be expected to be a beneficiary under the Will. In such circumstances, legal advice should be sought as a matter of urgency.
DEFECTS IN THE WILL:
A Will must comply with certain formalities, such as being properly signed, dated and witnessed by two persons who were present when the Will maker signed.
However, even if these requirements are not met, the Court may give Probate of an “Informal Will”.
UNDUE INFLUENCE
Quite often a person makes a Will shortly before their death or changes an existing one.
In such circumstances a claim may arise that the Will maker has been unduly influenced by a person to make their Will in a certain way (usually at someone else's expense).
CHALLENGE A WILL
The Family Provision Act allows certain categories of people to claim if a Will fails to make “adequate and proper provision” for them. What is adequate and proper depends on all the circumstances including the size of the estate, the financial position of the applicant and the beneficiaries named in the will and the degree of estrangement between the applicant and the deceased. Estrangement is, unfortunately, a common occurrence and does not usually mean that a applicant should be excluded from the will altogether.
The persons who can apply are:
- A spouse, including a de facto spouse;
- Children of the deceased (including adopted children);
- In certain circumstances, grandchildren of the deceased;
- Parents of the deceased (but usually only if they were financially dependant upon the deceased in some way).
It is important to note that:
- In Western Australia, special provisions apply for step children
- There are often issues as to whether a person was or was not a de facto of the deceased
- There are time limits that apply to bringing a claim.
If you want to challenge a will please contact us
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CONTESTING A WILL
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On what grounds can a will be contested in Australia?
Contesting a Will is when valued members of the deceased's family feel they were unfairly left out of a Will or not adequately provided for. The contents of a Will can be challenged in Australia by law if there is a good reason.
There are 3 main reasons why family members challenge Wills in Western Australia:
- A family member (spouse, child or parent) has not received a fair distribution from the Will or been left out entirely (a Family Provision Act claim);
- The validity of the Will is doubted; and
- The meaning of the Will is unclear.
How do I challenge a will in Western Australia?
A will can be challenged regarding its validity, prior to a grant of probate being obtained by the executor. Under Section 63 of the Administration Act 1903 (WA), a person can lodge a caveat with the Principal Registrar of the Supreme Court of Western Australia, preventing a Grant of Probate being made. You should seek proper legal advice before taking this step. However, once a Grant of Probate is made it becomes harder to challenge a will on the grounds that the will maker lacked capacity, so it is important to get legal advice as quickly as possible.
Who can Challenge a will under the Family Provision Act?
In Western Australia only an immediate family member (spouse, child, grandchildren [in certain circumstances] and parents), can challenge a will under the Family Provision Act. Step- children may claim in very limited circumstances.
Contesting a will on other grounds can only be done by someone who has a legitimate claim against the Deceased’ estate, for example if they are a beneficiary under an earlier will.
Can a sibling contest a will in Australia?
Each state and territory has different categories of people who may contest a will. Usually, a brother or sister of the deceased is not considered an eligible person. The only people who can contest a will are the deceased's spouse or former spouse, children, grandchildren – persons who might be considered to have a ‘moral claim’ on the Deceased’s estate.
Can my parents leave me out of their will?
Parents can and often do leave adult children out of their will. This does not mean that the person who has been left out is automatically entitled to some fixed amount – or even any amount- from the parent’s will. Each case is considered on its own merits and it is necessary to show that the person left out of the will is in financial need (relative to the size of the estate) and has not behaved in such a way as to be disentitled for claiming.
Is there a time limit on challenging a will?
Any claim under the Family Provision Act must be brought within 6 months of a grant of probate or letters of Administration having been made.
Claims on the grounds of undue influence or capacity should be brought before a grant of probate is made. Sometimes, a person who objects to the will may have been unaware that the Deceased person had died (perhaps even because the death was concealed from them) and this may have prevented them from taking action immediately. However, action should be taken as soon as possible in all cases once you are aware of someone’s death.