What Are Your Rights When Contesting a Will in Western Australia?

The passing of a loved one is never easy, and matters can become even more complicated when disputes arise over the contents of their will. In Western Australia, if you believe a will is unfair, invalid, or doesn't reflect the true intentions of the deceased, you may have legal grounds to contest it. Understanding your rights and the legal process is essential to protect your interests and achieve a fair outcome.

In this blog, we break down everything you need to know about contesting a will in WA, your eligibility, legal options, and the role that experienced probate lawyers in Perth can play in guiding you through this emotionally and legally complex situation.

What Does It Mean to Contest a Will?

Contesting a will involves challenging the validity or fairness of a deceased persons will in a court of law. It typically occurs when a family member, dependent, or other eligible person believes they have not been adequately provided for or were unfairly excluded.

Common reasons for contesting a will include:

• The deceased lacked mental capacity when making the will

• The will was made under undue influence or coercion

• The will was not properly executed according to legal standards

• A more recent valid will exists

• The provision made for a dependent is inadequate

Who Can Contest a Will in WA?

According to the Family Provision Act 1972 (WA), only certain individuals are eligible to contest a will. These include:

• Spouse or de facto partner

• Children (including step-children in some cases)

• Grandchildren who were financially dependent

• Parents who were financially dependent

• Any person who was maintained by the deceased

If you fall within these categories, you may have legal standing to contest the will. However, consulting with a contested wills lawyer in Perth is highly recommended to assess the strength of your claim.

Legal Grounds for Contesting a Will

There are two main legal avenues when it comes to challenging a will in WA:

1. Family Provision Claim

This type of claim argues that the deceased failed to make adequate provision for the claimants maintenance, education, or advancement in life. You must file this claim within 6 months of the grant of probate or letters of administration.

2. Challenging the Validity of the Will

This involves disputing whether the will was legally valid due to factors like mental incapacity, forgery, or undue influence. This challenge must be made as soon as possible and ideally before probate is granted.

What Are Your Legal Rights?

If you're contesting a will in WA, your legal rights depend on your relationship with the deceased and the circumstances surrounding the will. Your rights may include:

• The right to make a family provision claim if you're an eligible applicant

• The right to a fair share of the estate if you were financially dependent

• The right to legal representation and to present your case in court

• The right to mediation before going to trial (many disputes are settled out of court)

• The right to transparency in estate administration and access to certain documents

Working with the best probate lawyers in WA can ensure these rights are protected and exercised properly.

The Role of Probate Lawyers in a Will Dispute

Probate lawyers in Perth can provide valuable legal support and strategic advice during a will contest. Their role includes:

• Evaluating the validity of your claim

• Gathering evidence to support your case

• Communicating with executors and other beneficiaries

• Representing you during mediation or litigation

• Ensuring your claim is filed within the statutory time limits

Choosing a contested wills lawyer in Perth with experience in estate litigation is crucial for increasing your chances of success.

What Happens During the Contesting Process?

Heres an overview of the typical steps in contesting a will in WA:

1. Seek Legal Advice: Talk to a probate or contested wills lawyer to determine if you have a valid claim.

2. Review the Will: Examine the content of the will and its execution for any irregularities.

3. Lodge a Claim: File a family provision claim or a challenge to the wills validity.

4. Mediation: Parties are usually encouraged to mediate the dispute before it reaches trial.

5. Court Proceedings: If no resolution is achieved, the case proceeds to court, where a judge makes a ruling.

6. Judgment: The court may alter the distribution of the estate to ensure adequate provision is made.

Time Limits to Keep in Mind

Time is a critical factor when contesting a will in WA. For family provision claims, you generally have six months from the date of probate being granted. Missing this deadline can jeopardise your right to challenge the will, although extensions may be granted in special circumstances.

Common Challenges and Misconceptions

• "Only children can contest a will." False. Spouses, stepchildren, and dependents may also have valid claims.

• "The will can't be challenged if it's legally valid." Not true. Even a valid will can be challenged on the grounds of inadequate provision.

• "Contesting a will always ends up in court." Many cases are resolved through mediation, saving time and legal expenses.

• "It's not worth the trouble." With professional legal guidance, many clients successfully claim their rightful share.

Final Thoughts

Contesting a will in WA is a sensitive and complex legal process that requires a clear understanding of your rights, obligations, and the legal framework. Whether you're a spouse left out of the will or a dependent inadequately provided for, you do have legal options.

Engaging with the best probate lawyers in WA or a skilled contested wills lawyer in Perth can make all the difference in ensuring a fair resolution. These professionals bring experience, compassion, and legal expertise to help you navigate this difficult time and protect what is rightfully yours.

If you believe you have a valid reason to contest a will, dont delay. Act promptly, gather your documents, and seek trusted legal advice to start the process confidently and correctly.