If you believe that:

  • a will is unfair because you have been left out of the will, or you only received a small amount under the will, or
  • the will is invalid because the deceased did not have mental capacity or was subject to undue influence or pressure by someone,

you may wish to consider contesting the deceased’s will to receive your proper entitlement.

If you make an inheritance claim, the Executor of the deceased estate must not make any further distributions from the deceased estate.

Who can challenge an unfair will?

In WA, a spouse, de facto spouse, former spouse, step-child, grandchild or parent may make an inheritance claim under the Family Provision Act 1972 if they wish to challenge the validity of the deceased’s will or codicil, or more generally to obtain a greater inheritance under the deceased’s will.  Under changes to the law in WA in 2013, a step-child is eligible to challenge a will only in limited circumstances.

Where a deceased’s will does not make adequate provision from the estate for the proper maintenance, support, education or advancement in life, the Supreme Court may order that a greater provision be awarded to you.

How will the Court decide if the will is unfair?

Before the Supreme Court can determine whether an adequate provision has been made for you in the will, the Court will consider factors including (where relevant):

  • the type of relationship you had with the deceased;
  • how long the relationship lasted;
  • if you made any contributions to the deceased’s estate;
  • the provision you received;
  • the number of existing or potential beneficiaries under the will;
  • other legitimate claims made against the deceased estate;
  • if the deceased made any promises to you;
  • the size of the deceased estate;
  • the conditions upon which you may receive property or money under the terms of the will;
  • whether you received an advancement of property or money during the lifetime of the deceased;
  • the effect (if any) on other beneficiaries if a different provision is made for you;
  • your financial needs;
  • the financial needs of any other people; and
  • the reasonable expectations of the community.

What if the person died without a valid will?

Even if the deceased died without a valid will, you may challenge the distribution of the deceased’s estate made under the Administration Act 1903 if you believe you have received an inadequate provision.

Is there a time limit for challenging a will?

Yes.  Pursuant to the Family Provision Act 1972, the time limit to make an inheritance claim is 6 months from the date of the Grant of Probate or Letters of Administration.  After this period has elapsed, you must obtain leave of the Supreme Court to pursue your inheritance claim.

How much money could I get from the estate?

Every case is different, so it is very difficult to assess what entitlement you may be Granted by the Supreme Court.  The Supreme Court will consider (as at the date of death of the deceased) what is an adequate provision from the estate for your proper maintenance, support, education or advancement in life (see Bondelmonte v Blanckensee [1989] WAR 305).  If the Supreme Court is satisfied that an inadequate provision has been made for you, then the Court in exercising its discretion may make such provision for you as the Court thinks fit.

What if the Executor/Executrix has failed to administer the deceased estate?

The Executor (or Executrix) is under a duty to bring in and take control of the deceased’s property, pay the debts, taxes and expenses of the estate and to distribute the net assets of the deceased estate to the beneficiaries in accordance with the provisions of the deceased’s will.

The Executor/Executrix must act in good faith when administering the deceased’s estate. If, as a beneficiary, you feel that the Executor/Executrix has failed in their duty and this has resulted in you missing out on some or all of your inheritance, you may wish to take legal action.

No win, no fee arrangements

Robson Hayes Legal, after assessing your case, may agree to conduct your case on a no win, no fee basis to ensure that you are able to be legally represented, even if you cannot afford a lawyer.  If your case is not successful, you do not have to pay our legal fees.

In most cases if you are successful, the Court will make an order that your reasonable legal fees be paid out of the assets of the deceased estate.  This will likely cover most of your legal fees.  In some case, the court will allow your costs to be paid on an indemnity basis, which would cover all your legal fees unless they were unreasonably incurred.

A vast majority of claims are settled by mediation.  This assist to reduce any legal fees by avoiding a costly and stressful trial.  It may also resolve the inheritance dispute quickly so that you obtain your fair inheritance in a reasonable time.

Contact Robson Hayes Legal to discuss your case if you wish to consider this option.

Legal advice and representation

The expert Barristers and Solicitors at Robson Hayes Legal have many years of experience providing legal advice and assisting with inheritance disputes.

If you need us to assist you with an inheritance dispute, then contact us by phone on (08) 9322 2256 or email us at contactus@probatewa.lawyer to make an appointment to meet with one of our expert Barristers and Solicitors for a free consultation.