Whilst Wills may be challenged by an ‘eligible person’, usually a relative of the deceased that is disgruntled by the contents of a Will, it is not necessarily the case that a Court will agree to change the terms of the Will.

Claims may be made under the Family Provision Act 1972, the Administrations Act 1902, the Wills Act 1970 and claims in equity.

However, as is often the case in legal matters, there may be two ways to consider the same issue. Often, the opposing position is that the person making the Will (the testator) should have the ability, without restriction, to decide how their estate is distributed upon their passing. This is often referred to ‘testamentary freedom’.

Testamentary freedom is the counter argument when a person has distributed their estate disproportionately; whilst it is a concept that is generally respected in Australian law, it is no different to other freedoms in that it should be used reasonably, and not abused.

In the balancing of the counter arguments, the Court will also consider other issues such as the financial position of all the parties. The financial needs and financial resources of not just the applicants, but the defendant beneficiaries, will be considered. 

Whilst a party may decide to refrain from providing such detail as to their finances, if they do, the Court will likely consider that they are not ‘financially pressed’. Accordingly, anyone intending to make a claim should be prepared to ‘disclose all’ to the Court.

Complications can arise when a Will is challenged and the Executor is also a beneficiary. 

An Executor’s relationship with the beneficiaries of the estate is fiduciary. Put another way, the Executor has a duty to act in the best interests of the beneficiaries, without personally profiting in any way, and without any conflict between the two roles. Sometimes, the Executor may need to step aside from that role; occasionally the beneficiaries may insist that happens.

Defending a challenge on a Will in Western Australia can be complicated. If you are an Executor, or beneficiary, with concerns, contact West Family Lawyers on 9380 9111 to make an appointment for an initial consultation.