Contesting a deceased estate is a legal process that allows:
- certain individuals to seek a share (or greater share) of a loved one’s estate if they believe they have been inadequately provided for, or
- interested parties to challenge the validity of a Will.
Part 1 of this article focuses on disputes relating to the quantum of a claim. Part 2 will address how to dispute the validity of a Will on grounds of lack of capacity, undue influence, duress etc.
Disputes relating to shares of a deceased estate
The Family Provision Act 1972 (WA) )(“the Act”) governs disputes relating to the distribution of a deceased estate.
Who Can Contest a deceased estate in WA?
Section 7 of the Act confirms that claims for further and better provision from a deceased estate can be made from:
- Spouses and de facto partners (including multiple partners)
- Children (including adopted children)
- Stepchildren in limited circumstances
- Parents, and
- Grandchildren and former spouses in limited circumstances.
Siblings, friends and distant relatives do not have standing to contest a deceased estate seeking further provision.
Grounds for Contesting
A Family Provision Claim is made when an eligible person believes the will (or the intestacy laws, if no will exists) fails to make ‘adequate provision’ for their maintenance, support, education, or advancement in life.
In determining a claim, the Court balances the deceased’s testamentary freedom with the legitimate needs of the claimant and consider factors such as:
- The claimant’s financial and personal circumstances
- The size and nature of the estate
- The relationship between the claimant and the deceased, and
- Competing claims from other beneficiaries.
Time Limits
The Act provides claimants with 6 months from the date Probate is granted to an executor to bring their claim for provision or further provision.
Extensions are rare and only granted under exceptional circumstances, such as being unaware of the death or grave illness.
The Legal Process
Most deceased estate claims are resolved outside of court, often through a series of offers being exchanged between the parties, mediation or collaborative practice.
Mediation involves a neutral third party helping both sides reach a mutually acceptable agreement. If mediation fails, the matter may proceed to a trial in the Supreme Court of Western Australia where a judge will determine the matter.
Proceeding to trial in a claim under the Family Provision Act may cost between $60K and $150K. If you are successful, it is likely that your costs will be paid for out of the deceased’s estate. If your claim is unsuccessful, it is likely you will be left with paying your own legal costs and potentially those of the other parties’.
It is essential to consult an experienced estate lawyer early to assess the strength of your claim and understand your costs exposure.
Can you contest an estate even if the deceased died without a Will?
If the deceased died without a valid will (known as ‘intestate’), eligible individuals may still contest the distribution under intestacy laws if they believe the statutory allocation to them is unfair.
No-Contest Clauses
Some wills include a “no-contest” clause to discourage disputes over deceased estates. These clauses are not enforceable in WA and do not prevent eligible persons from making a Family Provision Claim.
Likewise, leaving a gift to a beneficiary of a set sum or percentage does not prevent them from bringing a claim if they are an eligible claimant.
Final Thoughts
Contesting a deceased estate in Western Australia is a complex legal process requiring careful consideration of eligibility, timing, and the merits of the claim.
If you believe you have been unfairly excluded or inadequately provided for, ensure you seek legal advice promptly to protect your rights and ensure compliance with statutory deadlines.
If you are considering a claim against a deceased estate, or defending a claim being made by someone else, Karolina Rzymkowska and the team at Luna Legal Group can assist you in understanding your rights. We offer free 15-minute initial consults. Please reach out to admin@lunalegal.com.au or call (08) 6401 4633 to book a time for us to speak.