16 Mar 2013

New changes to WA inheritance law


Some important changes to Western Australian inheritance law came into effect on 16 January 2013.

Under the terms of what is now called the Family Provision Act 1972 (formerly known as the Inheritance (Family and Dependants Provision) Act or just the “Inheritance Act”), people who believe that they have not been adequately provided for in the estate of a deceased relative, may apply to the court for an order that they receive more from that estate.

Prior to these amendments, an application to challenge the terms of a Will could only be made by a spouse (married or defacto) of the deceased, the former spouse who at the time of the deceased’s death was receiving or was entitled to receive maintenance from the deceased, a child of the deceased (including one not yet born), and a grandchild being maintained by the deceased or a grandchild whose parent died before the deceased.

Today, the recent amendments have now enlarged the class of persons entitled to make such a claim to also include a stepchild of the deceased.

The Act defines a “stepchild” as a person who was alive on the date on which the deceased married/entered into a defacto relationship with the parent of the person, but who is not a child of the deceased.

In order to eligible, immediately before the death of the deceased:

1) the stepchild must have been maintained, or have been entitled to be maintained by the deceased; or
2) the deceased must have received, or have been entitled to receive property (currently of a value of at least $460,000 [UPDATE: this increased to $517,000 on 16 May 2015]) from the estate of a parent of the stepchild (other than as a creditor).

These amendments have been brought into effect to take into account the increasing amount of ‘blended’ families in today’s society, and to remove the likelihood of an injustice being suffered by a stepchild in these circumstances.

What does this mean to the ordinary person?  If you are a stepchild who has been left out of a Will or has not been adequately provided for in a Will, you are now entitled to make a claim for adequate provision out of the deceased’s estate, if the deceased passed away after 16 January.

On the flipside of this,  it is also important to be aware, when making your Will, of the potential claimants on your estate and to take them into account when finalising your Will.

This is but one of the changes to succession law enacted this year.  Another important change deals with the way a Court treats statements by a deceased of their decision to disinherit or reduce the inheritance of someone who would ordinarily be expected to receive the deceased’s assets on their death.

It’s always a good idea to take advice from skilled legal practitioners about dealing with estate disputes, or to discuss what you’d like to happen with your assets after you’re gone.  Some timely precautions can save a lot of problems for your loved ones.

Taylor Smart’s Perth lawyers can help, and we’re only a phone call away.

We talk more about the basics of making an inheritance claim here.

About the Author

Joshua is a member of our Commercial practice group. He provides commercial legal services and has experience in commercial leasing, property law and conveyancing, wills and estate planning, commercial contracts, corporations law, mining law and bankruptcy. He has also worked in native title matters.

8 Responses to New changes to WA inheritance law
  1. I was informed by my brother that our father’s second wife changed his will after his death cutting us both out of the estate
    (worth 500,000) and transferring all benefit to her own children.from her first marriage. My brother maintains that he received nothing. He is a resident of WA while I live in Sydney.(born in WA) and he states that when our father died in 2001 his second wife, under WA law, had the power to change his will and redirect distribution of his entire estate. If true this means there was no point in our father making a will in the first place if it could be completely overturned by his surviving spouse. What kind of primitive lawless place is WA that such injustice could occur for so long – a place where there was no point making a will for the benefit of your loved ones because after your death it could immediately be corrupted and invalidated and the estate of the deceased stolen

    • Hi Helen, thanks for reading and thanks for your comment.

      Your father’s second wife will not personally have had the power to change your father’s will after his death, but she may have applied to the Court for some sort of order in relation to it (i.e. she may have claimed that it was invalid for lack of capacity, for example) or she may have made a claim for increased provision.

      It sounds like what may have happened is that after your father died, he left everything in his will to his second wife, and she has decided to then leave everything in her own will to her own children. There are some options in that case but they are very dependent on the circumstances such as what sort of wills your mother and father made, and what your father’s estate assets were.

  2. my father died and as directed by my grandparents that his share of their estate as he was deceased was to be given to my siblings and I. but days before my father died my mother had an extension put on my fathers will that when my grandparents estate was divided that us siblings were to sign it over to her is this legal

  3. MY mother passed away two months ago and my dad has also passed away. I am trying to find out about the inheritance they left in the will.As I don’t talk to my brother its hard to find who has the will and who the executor of the will is.I live in perth wa.Thanks

    • Hi Jack, thanks for your comment. If an application has been made for probate, then you may be able to get a copy from the Supreme Court. Otherwise, the situation needs some detective work to work out whether there is a will, and to work out what is actually in the estate.

  4. Good morning, Would you please explain the inheritance law when a wife dies and her husband dies 22 days after her. Does her estate go to him or because they died so close together how are their estates shared between both parties children. They did not own a house but did have money in the bank.
    Does the husband’s estate inherit the deceased wife’s estate as no Probate was done before he died.
    I am not party in this matter but it is worrying me that the wife’s children from her first marriage will receive nothing from their joint furniture or joint bank account.

    • Dear Lenora, thanks for reading.
      In the case you describe, if there was a will then the property would be disposed of as per the will. Even if probate hasn’t been obtained, it can still be done now.
      It will be up to the terms of the will whether the property passed to the husband or would be disposed of to others. Often couples make “mirror wills” which leaves all of their property to their spouse and if the spouse predeceases them or dies within a certain time of their death, there are provisions for alternative recipients. If mirror wills were made, it will depend on the terms of the wife’s will as to whether the husband got the property or if he died within the window of time stated in the will (in which case the other recipients named in the will would receive it).
      Note that where property was jointly owned – such as a joint bank account or a house where both were registered as “joint tenants” on the title – then it would have gone to the husband automatically, regardless of the will.
      I hope this helps, feel free to get back to me if you have further questions.


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