Is it possible to contest a Will in Western Australia?

A Will can be contested after a person has died. However, the situations where this is possible are limited.

The law provides that a person has the right to decide who receives their assets when they die. A person does this during their lifetime by making a Will to say who should receive what.

However, there are some circumstances where someone might contest a Will after the person who made the Will has died.

In Western Australia, a Will can be contested  if:

  • there is a more recent Will
  • the person who made the Will did not have the capacity to make a Will at the time that they signed the Will
  • the Will was made under the influence of other people

It may also be possible to contest a Will if the person who has died did not provide enough for certain family members. This is called a Family Provision Act claim.

Related information: Colleen McCullough’s Will and Are you in a de facto relationship without a will?

 

Who decides to contest a Will? Will I have to go to Court?

Once probate has been granted in a Will in Western Australia, any applications that contest the Will are heard by the Supreme Court of Western Australia. The Court will decide the matter in accordance with the law.

In some cases, it is appropriate for parties to attempt to come to a mediated outcome (sometimes called a “settlement”). Mediated outcomes can be more customised than the orders that a Court can make, and usually enable parties to save on legal fees and resolve the dispute more quickly. In fact, most deceased estate disputes are settled outside of Court. A lawyer with expertise in estate litigation can provide you with advice on strategies to resolve your specific situation.

 

Who can contest a Will in Western Australia?

People that can ask for greater provision from a Will are:

  • a person who was married to, or living as the de facto partner of, the deceased person immediately before they died
  • a person who was receiving or entitled to receive maintenance from the deceased person at the date of death
  • a child of the deceased person (including a child born within 10 months after the person died)
  • a grandchild of the deceased person (some limitation apply)
  • a stepchild of the deceased person (some limitations apply)
  • a parent of the deceased person (some limitations apply)

If a person feels they have been unfairly left out of a Will, they should seek specific legal advice to find out whether they have grounds for a Family Provision Act claim. Delay could mean that the time frame for bringing a claim has passed.

Related information: The importance of will writing and estate planning

How long do you have to contest a Will in Western Australia?

Anyone who is considering contesting a Will after a person has died should seek legal advice as soon as possible to avoid their potential claim being out of time.

For example, if a person wants to ask for greater provision from a Will, they generally need to file their application within six months of probate being granted.

Who are the parties in an action to contest a Will?

If someone begins an action to contest a Will, then the parties that they must usually include in the action are the Executor of the Will and any beneficiaries who might be affected by their action.

 

Who pays the legal costs for contesting a Will?

In some circumstances, the legal costs for challenging a Will can be paid from the deceased person’s estate. However, this is not always the case. There can be serious costs consequences for parties engaging in an inheritance dispute. We recommend that you seek specific legal advice on legal costs before commencing any application to contest a Will.

 

Enquire Now

Want to know more? Let’s Chat.

  • By clicking send you agree to our Privacy Policy

100 years of Supporting West Australians

"My family law experience with Mary Roubos has restored my faith in solicitors in general. She not only demonstrated her legal expertise and flair, but also showed a compassionate and understanding nature during the lengthy process. I felt that Mary went above and beyond her obligations as my solicitor, and really listened to me. I would highly recommend Mary and her assistant Debra Wilson, who also demonstrated professionalism and excellence on all levels."

Renee Frangiosa

"Always fast and thorough service. Thank you"

Sitka Pil

"I found Ben most helpful and always prompt to let me know where things were at. Will definately use Ben again and will recommend to others."

Gerrit and Mary Van Bralal

"We wish to express our thanks for your help in attending to our mother/ wife's will - Mrs Grace Margaret Vessey. Aimee was extremely helpful and easy to deal with. We are greatful for your help with our affairs."

Ms Rosalyn Norman, Mr Stephen Vessey

"Thank you ever so much for all your hard work on my case Nicole, I really appreciate everything you did for me."

Workers Compensation Client

"Thank you for such great assistance with the transaction of Flying Domestics on behalf of Lorna Good. It has been such such a pleasure to work with the HHG Legal Group and I look forward to working with you in the future."

Jim Goodwin

"Simon Creek and his team were at all times empathic, professional and confident.  My matter needed to be addressed within a pressing time frame, and their availability at short notice and contact after hours was much appreciated.  It caused me considerable stress, but having such a thoroughly reliable and competent team to call on helped me to feel in control. Although I hope not to need their services again in future, I would be confident in doing so!"

Dr Lana Bell

"A good outcome is what we can expect.  A great outcome is a sign of a company which does the very best for their clients. A very big thank you to Daniel Morris for showing empathy towards my small and much needed legal action.

To HHG Legal Group, thank you for a great outcome.  I would recommend your company to anyone seeking legal services."

Jan Atkinson

"Your support this morning was amazingly kind, not to mention your totally reassuring competence, knowledge and wisdom that you used on my behalf.  It was extremely reassuring to have your knowledgeable support, and I particularly appreciated your real and obvious kindness to me. It means so much at a very difficult time. I'm so grateful to you."

Family Law Client

"I highly recommend the services of HHG Legal Group for both personal and business needs. HHG is very up to date with legal advice and are in tune with the evolution of business."

Robert Forgione

"Sue and myself would like to thank HHG for the way in which our dispute was resolved. It is good to know that people who do not have an understanding of the legal system can rely on people like yourself and the company you represent. Without the assistance of HHG we could not have resolved the problems we were facing, not only have we resolved the issue but the outcome was more favourable then we would have thought possible. Thank-you and please pass on our thanks to all those who worked behind the scenes to achieve this outcome."

Rick and Sue Ashton

"Janene was very professional and we established a good rapport quickly. The subject of death and wills can be quite confronting to deal with, however Janene's approach was soft and accommodating."

Lynette Livesey

"A big thank you to HHG for their professional service, continued support, and wide range of legal knowledge. Our clients have given us nothing but kind words regarding HHG Legal Group and so we have no hesitation in referring and recommending Simon Creek and HHG Legal Group for their outstanding services and legal expertise."

Nigel Plowman, Director at McKinley Plowman & Associates

"Simon is a friendly and practical legal advisor. I have received great feedback from the clients I have referred to him and his team at HHG Legal Group."

Richard Beal, Director at BDO

"Over the last few years, I have been impressed by Simon’s legal ability, management skills, entrepreneurial spirit, personal integrity and people skills. He appears to be that rare breed of lawyer – both knowledgeable and commercial."

Michael Malone, Founder of iiNet

"Our family has been a client of HHG Legal Group over many years and most recently in 2013 and February 2014.  Business has included drawing up of wills for three generations and preparing of probate for my father in law.

I would have no hesitation in recommending HHG Legal Group to anyone requiring such services."

Bernice Climie

"You should be congratulated for the manner in which your staff address clients and we found our dealings with your company, once again a very pleasant experience and we would like to truly thank you for your efforts."

Steve Harvey and Jane Powell

"HHG Legal were absolutely fantastic. Extremely responsive and brought calm to our chaotic family situation through their knowledge and caring attitude. Extremely professional from our very first contact with them and they expertly guided our family though the required legal process over almost a 12 month period."

Amanda Williamson

"Fantastic team! They really care about their client. Tim Colcutt is a 'go that extra mile' guy who gives his client his all. I can't recommend HHG and Tim enough."

Kerry Samson

"Anne Hurley has been such a valuable resource of information and advice, her wealth of knowledge is truly impressive and her ability to explain things in a way that makes them easily understood is very much appreciated. Anne and the wider HHG Legal Group are always a pleasure to work with."

Giorgia Parham

"I had a fantastic lawyer in Anne Hurley. She helped me out a great deal with good, sound advice in a friendly , professional manner. First class, thanks Anne"

Graeme Hammond

"Marine Plant Systems has been working with HHG Legal Group for a few years now and they continually provide first class service. Their professional advice has been invaluable to our company."

Carolin Grimm

"We were kept up to date at all times. Pricing was always updated over the time period so we remained "in budget". Personal access to someone whenever I had questions. All in all a great experience without too much fuss."

Rosslyn Tasker - COO AltusQ Pty Ltd

"Good service you can count on."

Miles Lee

"HHG Legal Group have provided outstanding support as I have taken the journey of buying a business, their professionalism is beyound reproach. Their assistance throughout the Due Diligernce process have been invaluable, I would fully recommend them."

Mark Armitage

"I have experienced how good the HHG Legal Group team are over the last 6 years and highly recommend them."

Lyn Hawkins

"Very friendly and efficient service - what a pleasure working with Anne."

Jacques Taylor

"I highly recommend Daniel from HHG Legal Mandurah. When dealing with a complicated legal property matter recently I was extremely impressed by Daniel's honesty and integrity and the legal advice I received. I am very happy with the service from HHG Legal."

Tony Walker