Challenging an unfair will

Normally the law leaves it up to the deceased person to decide how their property should be shared out under a will. If a person dies without a will, there are laws about how the estate will be distributed to surviving relatives. 

The Supreme Court of WA will not usually interfere with what the deceased has put in their will, or how property is distributed if there isn't a will. However, it can change the share of the estate each person receives if it thinks the will, or the distribution, does not properly look after the future needs of the deceased's dependants.

If you were a dependant of someone who has died, and you do not receive an adequate share of their estate, you may be able apply to the Supreme Court under the Family Provision Act 1972 (WA) to challenge how the estate is divided. 

This is a complicated area of law and time limits apply to applications. You should get legal advice as soon as possible.

Find out:

  • when the court might alter a will or distribution of an estate
  • when you can apply, and 
  • what factors the court will look at.

When can I challenge a will or distribution of an estate?

The law normally says that people are free to decide how their property should be shared out after they have died, including decisions about who to include or exclude as beneficiaries. 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), simply if you did not receive as much as other beneficiaries, you think you should have received a greater share of an inheritance, or are unhappy that other family members were included in the will or distribution

However, the law recognises that a role of a will or inheritance is to assist the deceased's surviving family members and relatives. The court can make adjustments to how an estate is shared out if the will or distribution does not make 'adequate provision for the proper maintenance, support, education or advancement in life' of the applicant.

Who can apply?

The Family Provision Act 1972 (WA) sets out who can apply to the Supreme Court to ask for a larger share of an estate. This includes the deceased's:

  • spouse or de facto partner
  • former spouse or de facto parter if they were receiving (or entitled to) maintenance from the deceased
  • children
  • step-children, in some circumstances
  • grandchildren, in some circumstances, and
  • the deceased's parents.

You should get legal advice to confirm you are eligible if you think you may be able to make an application against the estate.

When can you 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 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 will the court consider?

The applicant will have to prove:

  • their relationship to the deceased
  • why they are entitled to a share or a larger share of the property
  • why the will (or distribution if there isn't a will) does not properly provide for their future needs.

It is for the court to decide whether or not it will interfere. There are no automatic assumptions that all children should receive an equal share or how property should be divided under a will.

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

  • how any change to the share of the estate could affect other beneficiaries
  • 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 during their life and your relationship in general.

 

Get help

Applying for a larger share of an inheritance or estate is a complicated process and area of the law. You will need legal advice and help from a lawyer to give you the best chance of success. 

Legal Aid WA does not give advice in inheritance matters.

The Law Society of WA can help you find a private lawyer who specialises in this area.

In suitable cases, funding may be available under the Civil Litigation Assistance Scheme to pay for legal representation for a claim under the Family Provision Act.

Resources

 

Reviewed: 11 April 2018

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.