Contesting a will

Contributed by Maree van der Kwast and current to 1 September 2005

INTRODUCTION

There are several ways a person may contest a will.

A person may want to challenge a will on the basis that it is unjust and unfair, does not truly represent the intention of the person who made the will, or that the will is not the person’s last will.

In all of these circumstances it will be necessary to get legal advice.

CHALLENGING A WILL

Contest the Grant of Probate

In this situation a person contends that the will presented for the Grant of Probate was not intended by the deceased to be his or her last will. This may be because the will presented to the court was not the last will made by the will maker; the will maker lacked the mental capacity to make a will; parts of the will were in fact alterations made after it was signed; or the will presented to the court was invalid. The opportunities to challenge the Grant of Probate this way are limited.

Interpreting the will

A Judge of the Supreme Court, upon application, can interpret a will. The executor or a party interested in the estate of the deceased may apply to the court to have determined what the will maker meant by the will. For example, a will maker may have left something to “my grandson George”. The will maker however has two grandsons by the name of George. Which one was meant to receive the gift? The extent to which a person may challenge the interpretation of a will is strictly limited.

The Inheritance (Family & Dependants Provision) Act 1972 (WA)

There is little opportunity to contest the will as to the terms of the will maker’s bequests. A general principal of law is “freedom of testation” which means that you can give your estate to whomever you wish. However, as a policy this was seen to be unfair and unjust when persons such as the wife or child of the deceased suffered hardship as a result of the deceased’s will.

The Inheritance (Family & Dependants Provision) Act 1972 (WA) allows the Supreme Court to award the surviving spouse or other eligible applicant part of the estate of the deceased even though the deceased has left them nothing or very little in the will. Persons who are eligible to apply for a re-allocation ofthe deceased estate are:

• a spouse (the criteria that must be satisfied by de facto spouses to claim changed in December 2002);
• a person whose marriage to the deceased has been dissolved or annulled and who was receiving or entitled to receive maintenance from the deceased at the time of the death;
• a child of the deceased;
• a grandchild of the deceased who at the time of the death was being wholly or partly maintained by the deceased or whose parent has predeceased the deceased; or
• a parent of the deceased.

The application must be made within 6 months of the Grant of Probate (or Letters of Administration). The Court may give an extension of time under some circumstances (s.7(2)(b) Inheritance (Family & Dependants Provision) Act).

Not all persons entitled to apply under the Act will succeed in obtaining a re-allocation order. The test applied by the court is whether the testator failed to provide adequately for the applicant’s proper maintenance, education or advancement in life (s.6(1)).

Over the years the courts have created certain guidelines for determining what is adequate provision for proper maintenance. The main standard is that the court must put itself in the position of the testator and consider the case as a “wise and just” rather than a “fond and foolish” spouse or parent. Some of the important things the court considers are:

• the size of the estate;
• the age, sex and health of the applicant. If the applicant is a grown-up son or daughter who has independent means and was not reliant upon the deceased at the date of his or her death, it is unlikely that the applicant would succeed. Married sons and daughters have little chance of an order of the court for an increased share of the estate on the deceased; and
• the closeness of the relationship between the applicant and the deceased.