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Challenging an unfair will

Challenging an unfair will

If you have been a dependant of someone who has died and you do not receive a fair share of their property, this information may help you.

This information outlines your rights and the procedures involved in challenging an unfair will. You will need help from a lawyer to make an application or to oppose an application made by someone else. It can be downloaded here.

I think I have not received a fair share of a close relative's property after their death. What can I do?

If you are a dependant of someone who has died and have not received a fair share of the deceased's property under the will or under the Administration Act 1903 (WA) ("the Act"), you may be able to challenge it. You should get legal advice before starting a challenge at court.

What if there is no will?

If there is no will then the property may be distributed according to the Act.

When will the court interfere with the way a person leaves their property in a will or with the distribution under the Act?

The Supreme Court will not usually interfere with the way a person leaves property in a will or with the distribution under the Act. However, it can interfere if it thinks the will, or the distribution, does not properly look after the needs of a person the deceased had a duty to provide for.

Do I need a lawyer to apply to redistribute a deceased estate?

You will need a lawyer to apply - it is a difficult process. The lawyer can prepare the documents and make the application to a judge of the Supreme Court.

You will have to prove:

  • your relationship to the deceased
  • why you believe you are entitled to a share or a larger share of the property
  • why you believe the will (or if there is no will, the law) does not provide well enough for you.

If the application is for a child, this information must relate to the child.

Who may apply?

To apply to the Supreme Court of WA to alter a will or the distribution under the Act you must be one of the following:

  • a person who was married to the deceased immediately before their death
  • a person living as the de facto partner of the deceased immediately before their death
  • a former spouse or de facto partner who was receiving, or entitled to receive, maintenance payments at the time the person died
  • a child of the person living at the time of the deceased's death, or a child born within 10 months after the deceased's death
  • a grandchild of the deceased:
    • who at the time of death of the deceased was being wholly or partly maintained by the deceased, or
    • who was living at the time of the deceased's death and one of whose parents was a child of the deceased who died before the deceased, or
    • who was born within 10 months after the deceased's death and who had a parent of the deceased who died before the deceased 
  • a step child of the deceased where the deceased died on or after 16 January 2013:
    • who was being maintained wholly or partly or was entitled to be maintained wholly or partly by the deceased immediately before the deceased’s death, or 
    • where the deceased received or was entitled to receive (other than as a creditor) property from the estate of a parent of the step child valued at the time of the parent's death at more than the amount specified in the Family Provision Regulations 2013 (WA)
  • a parent of the deceased.

Western Australian law recognises:

  • same-sex de facto relationships
  • de facto relationships where either of the parties are married to someone else or in another de facto relationship.

In certain circumstances the definition of "parent" includes the same sex partner in a de facto relationship.

Get legal advice if you are not sure if you are eligible to make an application.

When can I apply?

You must apply within six months of the grant of probate of the will. If the deceased did not leave a will, you must apply within six months of the grant of letters of administration.

This six month time limit may be extended in some circumstances, but extensions are quite rare. Every effort should be made to apply within the time limit.

If you are outside the time limit get legal advice as soon as possible.

What happens after an application is lodged?

The court will fix a time to hear the application.

In most cases the judge makes a decision based on the contents of the sworn or affirmed documents prepared before the hearing. Usually you will not have to go to court to give evidence. Sometimes the judge may require you or another person involved to give evidence.

What will the court consider?

The court will take a number of things into account, including:

  • how any change to the will could affect other people in the will
  • the sort of property involved and its value
  • the ages of the surviving dependants
  • the relationship to the deceased of other dependants
  • the needs of other dependants and your needs
  • the way you acted towards the deceased and your relationship in general.

It is for the court to decide whether or not it will interfere. Applications are not always granted, sometimes they may be refused.

What if I am affected by a court application?

If the court orders that someone should receive a share or a larger share of the deceased’s property then someone else will have to receive less.

If an application is made to the court, a summons and a copy of the documents filed will usually be given to each person whose rights under the will or the Act will be affected.

If you receive a summons you should get legal advice about your rights.

If you receive a summons and do not wish the court to interfere with the distribution of the property, you will need to file a document called an “Appearance” at the court. The time limit for filing an appearance will be on the summons.

Get legal advice before filing an appearance, or where that is not possible as soon as you can afterwards. You will need a lawyer to help you oppose the application in the Supreme Court.

If you do not file an appearance the court will make a decision in your absence. You will not have a chance to present evidence opposing the application. If this happens and it is a problem for you, seek legal advice as soon as possible.

Where can I get more information?

  • Legal Aid WA does not give legal advice in this area.
  • Contact the Law Society of WA on (08) 9324 8600 for a referral to a lawyer who specialises in this area.
  • Go to Lawyers for other information on finding a lawyer, including questions to ask a lawyer and about costs.

Last reviewed: 20/11/2015

Last modified: 27/11/2015 9:26 AM

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.