When a relevant person has been excluded, or has been left without adequate provision, upon the passing of another, it is possible that a claim may be made against the deceased’s estate, challenging the terms of the Will.
In Western Australia, a person that believes they have not been adequately provided for, may contest a Will provided they are an ‘eligible person’.
The Family Provision Act 1972 defines the categories of people that are eligible to make a claim. If you are a:
- current or former spouse or de facto partner;
- grandchild; or
of the deceased, you may possibly be eligible to make a claim.
If you make a claim, the Court will consider many issues, but primarily it will turn its mind to:
- whether the provisions of the Will make adequate provision from the estate for your proper maintenance, support, education or advancement in life; and
- if the answer to the above is ‘No’, making an order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.
If you are considering a claim, it is strongly recommended that you obtain advice as a priority.
A claim on an estate must be made within 6 months of the grant of probate.
The Court may choose to not accept a late application; you should assume it will not.
A grant of probate is the Court’s formal approval of the deceased’s Will. Ordinarily, if the validity of the will is not in question, the grant of probate will be a reasonably straight forward process for the Executor.
It is sometimes difficult to know whether or not making a claim is appropriate, particularly if you are not privy to the contents of the Will. The Executor may not necessarily have to disclose the contents of the Will to you.
Once a grant of probate has occurred, we can obtain a copy of the grant, and the Will. That may be your first step, and may assist with deciding as to whether or not to proceed further.
There is also the possibility that a Will may not be valid. The Court will need to be satisfied that it appropriate, usually that includes that it is writing, witnessed correctly and dated. It is possible on occasion that the Court will accept a Will which does not meet all of those validity requirements, but there will need to be good reason.
Wills can be rejected by the Court if there has been fraud, forgery or undue influence. If you consider there has been ‘mischief’ in relation to the making of a Will, you should seek legal advice as priority.
It is not unusual, given that Wills are often made during a person’s latter years, that the person making the Will (the testator) may have been suffering from dementia, or other state of unsound mind. It is quite possible that a Court may reject a Will on that basis. If that occurs, then, if there was a previous Will, that will be considered by the Court, if there was no previous Will, the deceased will be considered to have passed ‘intestate’.
‘Intestate’, is another way of saying ‘passing without a Will’.
If a person dies without a Will in Western Australia, the manner of distribution of the estate is specified in the Administration Act 1903 (WA).
Before making a claim as to the validity of a Will, you should be suitably informed as to what will occur if you are successful. In other words, what does the next step look like, whether that next step is a previous Will, or no other Will.
As is usually the case in legal matters, being well informed, in advance, is highly recommended. A little investment at the beginning can increase your chances of success, and reduces your risk, including the risks of unnecessary costs.
If you have concerns about a Will, contact West Family Lawyers on 9380 9111 to make an appointment for an initial consultation.