How Can I Contest a Will? Understanding Will Disputes in WA

What is a Will Dispute?

A will dispute is a legal challenge to the validity or provisions of a deceased person’s will. It can arise when a family member, beneficiary, or other interested party disputes the terms of the will, claiming that it does not accurately reflect the deceased person’s wishes or that it is unfair.

Wills disputes can be complex and emotionally charged, requiring the expertise of a wills and estates lawyer to navigate the legal process.

Can a Will Be Contested in WA?

When a loved one passes away, their last will and testament outline how their estate should be distributed. In some situations, disagreements can occur regarding the terms or fairness of the will. This may lead individuals to seek legal avenues to contest the validity or fairness of the document in a will dispute.

This article explores the legal framework surrounding wills disputes in WA, the grounds for challenging a will in Western Australia, and what to expect during the process.

Key Facts to Know About Challenging a Will in Western Australia

1. Time Limits: In Western Australia, claims under the Family Provision Act 1972 must generally be made within six months from the grant of probate.
2. Eligible Persons: Only certain individuals, such as family members, spouses, de facto partners, stepchildren*, or dependents, can contest a will in WA.
3. Legal Costs: Contesting a will can involve significant legal fees, and these costs may be covered by the estate or borne by the applicant, depending on the outcome.
4. Court Level: The Supreme Court of Western Australia oversees disputes relating to deceased estates and probate matters.
5. Alternative Dispute Resolution: Before initiating court proceedings, exploring mediation or other forms of alternative dispute resolution can be beneficial. These methods may provide a less adversarial and more cost-effective means of resolving will disputes.

*Stepchildren can be eligible under specific circumstances (if they were wholly or partly dependent on the deceased, and part of the household).

Common Grounds for Disputing a Will in WA

Lack of Testamentary Capacity

A will can be challenged if the will-maker did not have the mental capacity to understand the nature of their actions when creating the will. This includes understanding the extent of their estate, the people who may have claims on it, and the consequences of their decisions.

Undue Influence

If someone coerced or manipulated the will-maker into making certain provisions, the will’s validity could be contested on the grounds of undue influence.

Inadequate Provision

Family members or other dependents who believe they were not adequately provided for can file a family provision claim. This is often based on financial needs and the will maker’s moral duty to support certain individuals.

Improper Execution

Wills must meet specific legal requirements to be valid. If these formalities were not followed, such as improper witnessing, the will may be challenged.

What Are Your Legal Options for Challenging a Will in Western Australia?

Challenging a will is a legal matter that typically involves court proceedings. In some cases, the court may waive certain formal requirements if the evidence submitted for such an application is compelling. The process begins by consulting a lawyer to determine whether you are an eligible person and if there are valid grounds for contesting the will.

The Process of Challenging a Will:

1. Grant of Probate: The executor must first apply for a grant of probate to validate the will.
2. Filing a Claim: Submit your application to the Supreme Court, outlining the grounds for your challenge.
3. Court Proceedings: The court will assess the evidence, including financial needs, the will’s validity, and any undue influence claims.
4. Resolution: Disputes may be resolved through negotiation, mediation, or, in some cases, a court ruling.

Understanding Will Disputes and How to Resolve Them

Mediation

Mediation can be a cost-effective way to resolve disputes without lengthy court proceedings. It allows interested parties, such as other beneficiaries and family members, to negotiate a fair share of the estate.

Court Determination

If mediation fails, the matter proceeds to court, where a judge will determine whether the claim is valid and whether further provision should be made for the applicant.

Costs and Risks of Contesting a Will

Contesting a will can be a costly and time-consuming process. The legal fees involved in a successful application are usually paid out of the estate. However, if the claim is unsuccessful, the claimant may be liable for the estate’s legal costs as well as their own.

It is crucial to carefully consider the potential costs and risks before deciding to contest a will. Consulting with an experienced wills and estates lawyer can provide valuable guidance on the likely costs and outcomes of a will dispute.

At Lotus Legal, our services are clear, fixed-fee pricing with no hidden costs to ensure you can focus on the important matters at hand, knowing exactly what to expect throughout the process.

What Happens After a Will Is Contested in WA?

After filing a claim, the court reviews the evidence and the estate’s assets. If the challenge is successful, the court may adjust the distribution of the deceased estate to provide adequate provision for the applicant.

However, unsuccessful claims may result in the applicant being required to pay legal costs. Seeking expert legal advice early in the process is crucial to understanding your rights and the potential outcomes.

Avoiding Mistakes in Will Disputes

To avoid mistakes in wills disputes, it is essential to:

• Seek legal advice from a wills and estates lawyer as soon as possible
• Gather all relevant evidence and documentation
• Understand the legal process and potential outcomes; at Lotus Legal, we will be sure to talk you through the process to ensure seamless and clear communication every step of the way
• Consider alternative dispute resolution methods, such as mediation
• Be aware of the time limits for contesting a will

By taking these steps, individuals can minimise the risk of mistakes and ensure their rights are protected in a will dispute.

Why Seek Legal Advice?

Contesting a will in WA is a complex legal matter. Understanding your legal rights, the time limits involved, and the costs associated can make a significant difference when navigating probate and deceased estates.

Our experienced will dispute lawyers can guide you through the process and help you achieve the best possible outcome. Contact us today.