Our senior lawyers have many years experience in advising on estate disputes in Western Australia. We have experience in acting for plaintiffs, defendants and executors in various estate disputes.
Can I challenge a will or the distribution of assets from an estate?
The court will not usually interfere with the terms of a will, or (if there is no will) the distribution under the Administration Act 1903 (WA) for an intestate estate, solely because:
- you did not receive as much as other beneficiaries from the estate;
- you think you should receive a greater share of the estate; or
- you are unhappy that other family members were included in the will or distribution.
However, the courts recognise that when a person makes a will, that person has a moral duty to assist the deceased’s surviving family members. The court can make amendments to how an estate is divided if the will or distribution from an intestate estate does not make “adequate provision for the proper maintenance, support, education or advancement in life” of the applicant.
Can I apply for a greater share from the estate?
The Family Provision Act 1972 (WA) sets out who can apply to the Supreme Court to seek a greater share from an estate. The following persons are eligible to make an application to seek a share or a greater share from an estate:
- the deceased’s spouse or de facto partner;
- a former spouse or de facto partner of the deceased, if they were receiving (or entitled to receive) maintenance from the deceased;
- the deceased’s children;
- the deceased’s step-children, in limited circumstances;
- the deceased’s grandchildren, in limited circumstances; and
- the deceased’s parents.
It is important to seek legal advice to confirm you are eligible to make an application to seek a share or a greater share in the estate.
When can I apply?
You must apply within six (6) months of the grant of probate of the deceased’s will. If the deceased did not leave a will (i.e. the deceased died intestate), you must apply within six (6) months of the grant of letters of administration.
This time limit may be extended in limited circumstances. However, extensions are rarely granted by the court. Consequently, it is important that applications are filed at the Supreme Court within the time limit specified above.
If you are outside the time limit, get legal advice as soon as possible.
What will the court consider?
- the applicant’s relationship with the deceased;
- if the applicant should be entitled to a share or a greater share of the estate;
- if the will (or distribution if the deceased left no will) does not properly provide for the applicant’s future financial needs;
- how any change to the deceased’s estate could affect other beneficiaries of the estate;
- the value of the estate assets available for distribution to the applicant and the beneficiaries of the estate;
- the nature of the estate assets;
- the ages of the deceased’s surviving dependants;
- the relationship between the deceased and the other dependants;
- the financial needs of other dependants of the deceased and your needs;
- the way you acted towards the deceased during the deceased’s life;
- any gifts or provision made to you by the deceased, or promised by the deceased to you, during the deceased’s lifetime;
- any contribution made by you to the deceased, whether financial or non-financial.
You have no automatic entitlement to a share or a greater share of an estate solely because you are eligible to commence a claim. It is the court’s absolute discretion to decide whether or not it will interfere with the deceased’s will or the distribution of the deceased’s estate where no will has been made.
Are all claims heard by a Court?
All claims commenced under the Family Provision Act 1972 (WA) require the parties and their lawyers to attend a compulsory Supreme Court mediation conference. The mediation conference is mediated by a registrar of the Supreme Court. Approximately 97% of claims are settled at or shortly after the parties attending the compulsory Supreme Court mediation conference.
When negotiating a Family Provision Act 1972 (WA) it is important to be pragmatic and consider the legal costs which will be incurred if the matter is not settled at the mediation conference and must be heard by a Court. Given that a mediation conference usually occurs at an early stage in the proceedings, the legal costs involved can be reduced by fifty per cent (50%) or more if the claim is settled by the parties at the mediation conference.
If the claim is settled by the agreement of the parties at the compulsory Supreme Court mediation conference, the terms of the settlement are signed off by the parties in a Heads of Agreement. Shortly after the mediation conference, the parties then sign a more formal Deed of Family Arrangement or a Deed of Settlement, which is sometimes accompanied by a Minute of Consent Order to Settle Proceedings.
Who pays the legal costs?
Ordinarily you need to pay for your own legal fees arising from the claim, and the estate will pay for its own legal costs arising from the claim.
If the claim is not settled at or following the mediation conference, the Court will need to decide who should pay the legal costs arising from the claim. The general rule is that if you are successful with your claim against the estate, then the estate will need to pay the majority of your legal costs arising from the claim.
However, if your claim is unsuccessful, you will most likely need to pay the majority of the estate’s legal costs arising from the claim.
We offer various fee arrangements, including:
- Pay as you go;
- Payment at the conclusion of the mediation conference, subject to certain conditions; or
- No Win-No Fee, subject to certain conditions.
Contact Mid West Lawyers to advise on your estate dispute
Applying for a share or a larger share of an estate is complicated and stressful. It is important that seek legal advice as early as possible to give the best possible prospects of success and to minimise the risk of commencing a claim outside the time limitations.