Contesting A Will

Have you been left out of a Will or feel you haven’t been adequately provided for?

At Macdonald Rudder Lawyers we understand that the passing of a family member or loved one can be a challenging time which needs to be handled with utmost care and respect.  Unfortunately, the situation can be exacerbated with the realisation that you have been left out of the deceased’s Will or you feel that you haven’t been adequately provided for.

These circumstances highlight the importance of proper Estate Planning to ensure that family members don’t have to go through unnecessary stress when they are already dealing with the loss of a loved one.

If you are considering contesting a will we will provide you with clear information about the legal process and provide advice about disputing the will in the most cost effective manner.

Will Disputes

An Inheritance claim may be made against an estate by a family member who feels that they have not been adequately provided for.  It is important to understand that not all family members are entitled to contest a will or the estate of a deceased. If you are a child, parent, spouse or de facto partner of the deceased; a former partner entitled to receive maintenance, or in some circumstances a grandchild, you may have the right to make a claim against the deceased’s estate. The list of possible claimants is not exhaustive and we recommend that you take legal advice if you want to be sure about your right to claim.

Frequently Asked Questions

Who is eligible to Challenge a Will?

There are a number of circumstances in which you may have the right to make an Inheritance Claim against the deceased’s estate, if any of the following apply to your situation then we advice you contact us for legal advice – – You were a dependent of the deceased and you have not been adequately recognised. – You were a dependent of the deceased and you been left out of the will. – You believe that the deceased had diminished legal capacity when they made their last Will. – You believe the deceased was not of sound mind when they made their last Will. – You believe that the deceased was unduly influenced from others. – The deceased passed away without a Will. – You feel the Will is unclear.

What is Adequate recognition?

The first and most common reason is that you were not recognised, or not adequately recognised, by a loved one, or someone who had a duty to make adequate provision for you. What amounts to proper maintenance and support does not necessarily mean no more than satisfying basic needs. Your standard of living during the lifetime of the deceased is relevant, but the fact that you may have lived frugally or has become accustomed to a life of relative penury, does not mean that the testator’s obligation under the Act is satisfied so long as you can continue in that state: see Pogorelic v Banovich [2007] WASC 45 [62].

What happens if the Testor was influenced by others?

If you believe the deceased did not have the mental capacity to make the Will, or was unduly influenced by others in making the will, you may be able to obtain a court order to set aside the will. If this happens either an earlier will of the deceased will operate, or assets of the deceased will be distributed in accordance with a statutory formula set out in section 14 of the Administration Act. In the case that you do have a claim against a Will it is important that you act quickly as time limits apply to inheritance claim.

Who makes the final decisions?

In order to Contest a will, you must prove to the Court that the deceased had failed to make adequate provision from the estate for your proper maintenance, support, education or advancement in life. The Family Provision Act 1972 in force in WA gives the Court power to vary a will if it finds that the deceased has not made adequate provision from his or her estate for your proper maintenance, support, education or advancement in life.

Is there a time limit to Contest a Will?

You must apply to the Court for relief within 6 months from the date Probate is granted or an Administrator is appointed, although the court has power to extend time in certain circumstances.

How much does it cost and who pays?

There is no cost to telephone us for an initial obligation free telephone consultation. Our legal fees are reasonable and we have plans available to delay the payment of some or all legal fees until the final resolution of the dispute.

Macdonald Rudder Lawyers Partner, David Lang will look after your Will Dispute.  David has extensive experience in and knowledge in Contesting a Will, Will Disputes and Inheritance Claims.