09 May 2016

Will challenge – the basics

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Knowing the basics about making a will challenge will save stress at a difficult time.

The death of a loved one is always stressful, and that stress can multiply when the contents of the deceased’s will are revealed.  Knowing the basics about making a will challenge will save stress at a difficult time.

Traditionally, a person could leave their assets to whoever they liked in their will.

However, this would sometimes lead to unfair outcomes – for example, the sole family breadwinner might choose to leave all of their assets to a stranger or charity, leaving their spouse and children destitute.

As a result, a person can lodge a legal claim to contest the will of a person who should have properly provided for them.

In Western Australia, this right is in the Family Provision Act 1972, formerly known as the Inheritance (Family and Dependants Provision) Act, or often more simply, the “Inheritance Act”.

A person who has not been provided for in a will can apply to a Court (in this case, the Supreme Court of Western Australia).

If the Court is of the view that the deceased’s will does not:

make adequate provision from his estate for the proper maintenance, support, education or advancement in life of [the claimant] …

then the Court may order that “such provision as the Court thinks fit” be made for that claimant out of the estate.

It is important to remember two things.

The first is that the Court will only vary a will to the extent that adequate provision is made, and no further. The Court will not usually throw the will out and start from scratch.

The second is that, as the Court will only award what is required “for the proper maintenance, support, education or advancement in life” of the claimant, there has to be careful thought about what the applicant’s needs actually are.

A disappointed claimant should not contest a will just because they are a child of the deceased, or because the claimant believes that there should be an equal sharing of an estate amongst the children.  It is about the applicant’s specific needs.

In my next update, I will discuss who can lodge a claim.

About the Author

Peter Nevin is a Partner in our Commercial Litigation practice group. He specialises in commercial and general litigation, and provides detailed advice on industrial relations issues to both employers and employees. He also provides advice and representation in estate disputes on behalf of executors, beneficiaries and third party claimants.

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