Can a Family Member Challenge a Will in WA?

In order to minimise any possible disputes in the future when estate planning, it is recommended that you seek the advice of estate planning lawyers in Perth. However, regardless of how well-written the Will was, disputes could still break out between relatives upon the passing of a dear one. There are actually provisions in Western Australia allowing some people to challenge the Will.

You must know who can contest a Will, as well as the grounds they have in doing so.

Who Can Contest a Will in Western Australia?

The Family Provision Act 1972 (WA) allows only certain people to contest a Will. These typically include:

• Spouses or de facto partners
• Children (including adopted and sometimes stepchildren)
• Grandchildren (in limited circumstances)
• Dependants or persons for whom the deceased was providing financial assistance

The law acknowledges that some people may have a moral entitlement to be provided for in a deceased person’s Will. They may consider challenging the Will if they feel it doesn’t provide adequate provision for them, with the help of a Will dispute lawyer Perth.

Grounds for Challenging a Will

Family members can’t challenge a Will simply because they disagree with it. The person must have a good reason, including:

Lack of Adequate Provision

Most disputes in WA are based on this reason. An eligible person can apply for a Family Provision Claim if they think they were not sufficiently provided for in the Will.

Lack of Testamentary Capacity

The Will-maker (testator) should have been able to understand:

• The nature of making a Will
• The extent of their assets
• The claims of potential beneficiaries

This can be challenged with the help of estate planning lawyers in Perth WA.

Undue Influence or Coercion

If the testator was coerced or forced to execute their Will, or if someone persuaded them to modify it, it might be deemed invalid.

Improper Execution

Under WA law, a Will must be executed in accordance with requirements, such as witnessing. If not, it may be invalid.

Time Limits for Contesting a Will

Time is of the essence in Will disputes. In Western Australia:

• Claims must be made within 6 months of the grant of probate
• Failing to do so could result in losing the right to challenge, though it may be extended in some circumstances

It’s essential to take early legal advice from dispute a Will lawyers Perth WA to avoid missing deadlines.

How to Contest a Will

The process involves a number of steps:

• Initial Legal Consultation: The claimant seeks legal advice to determine the validity of their claim. This is when people start to realise they need estate planning lawyers Perth WA to help them.
• The Claim: In the event that there is a claim, the claim will be filed at the Supreme Court of Western Australia.
• Mediation/Concession: The vast majority of disputes can be settled by mediation because this process is more convenient both time-wise and financially.
• Judicial Process (When Required): If there is no settlement, then the case moves to the courts, where decisions concerning property distribution are made.

Things to Consider in Court

In deciding a Family Provision Claim, these are the things taken into account by the court:

• The needs and resources of the claimant
• The size and nature of the estate
• The claimant’s relationship with the deceased
• The claimant’s contributions to the deceased
• Interests of other beneficiaries

Therefore, a dispute a Will lawyers Perth are crucial in providing evidence and advocating for the claimant.

Costs and Risks Involved

There is a cost to challenging a Will. Key considerations include:

• The costs can be substantial, but often are paid from the estate
• If the claim fails, you may have to pay the costs
• Family relationships can be permanently affected

Given the potential consequences, it’s important to seek advice from lawyers for estate planning in Perth before starting a claim.

Preventing Will Disputes

While all disputes may not be prevented, estate planning can help avoid many. Some practical steps include:

• Thoroughly recording wishes in the Will
• Explaining unequal shares
• Keeping the Will up-to-date
• Engaging a disputed will lawyer in Perth

Consulting a disputed will lawyer in Perth when drafting the Will can assist in ensuring that the Will is valid and cannot be easily disputed.

Conclusion

In Western Australia, family members can contest a Will, but only within defined legal limits and time limits. Whether it is related to insufficient provision or questions surrounding the Will’s validity, all cases will be evaluated on a case-by-case basis.

Engaging lawyers for estate planning in Perth can also assist clients to draft their Wills effectively to minimise the risk of disputes and have their wishes honoured.