top of page
  • Ben Dickens

Who Can Challenge a Will?

In Western Australia there are specific categories of people who can challenge an estate. They are outlined in the Family Provision Act. In this article we run you through the broad categories and provide some anecdotes.

The children of the deceased can challenge a will. Interestingly but understandably, an infant child can challenge an estate even if they were born up to 10 months after the death of the testator. This allows for the duration of a pregnancy. More often though we see adult children as the main people challenging estates. The married or de facto spouse of the deceased may also challenge a will. These are the two most common scenarios we see.

Step-children, grand-children and even parents may also have standing to challenge a will in some circumstances. This can include where a step-parent had received an inheritance from their partner, and then die themselves, but their will leaves out their step-children. This sort of situation is becoming increasingly common as more people live in “blended families”. The law has been updated so that if the amount received by inheritance exceeds a prescribed amount, a step-child will have standing to challenge the will of their step-parent's estate. Sometimes it may be because someone is trying to give their own children an unfair advantage but oftentimes it’s merely because the respective wills were not properly drafted to take into account the circumstances of the blended family.

The opposite of this may be the case where an elderly couple are in a long term and committed second marriage. The couple may not have updated their wills and still have their adult children from a previous relationship as their only named beneficiaries in their will. If one of them dies and leaves their entire estate to their children, then this can cause financial ruin for the surviving partner. For example, we had a case where a couple in a “second marriage” had lived together for close to two decades. The wife was in her mid-70’s and the husband passed away in his 80’s. The wife has been caring for the husband who had been unwell for several years. The husband had not updated his will in many years and left his estate to his children (both in their 50’s). Unfortunately, this meant his wife in her 70’s was potentially looking at becoming homeless. We made an application to the Supreme Court and were able to secure the transfer the house to the wife meaning she had somewhere to live. His children still received a sizeable inheritance of the liquid assets (cash, shares etc).

Although rare, grandchildren may also challenge an estate (usually with the help of a legal guardian) in circumstances where they were financially dependent on the deceased immediately prior to their death. They may also challenge in circumstances where their own parent died before their grandparent.

If someone dies without a will they are considered to have died “intestate”. This means that the shares given to the surviving family members of the deceased are divided up according to law dictated by the parliament. This may result in an unfair division of the estate assets. For example, an adult child may not have spoken to the deceased in 20 years but they will still be entitled to an even share of the estate if the deceased didn’t have a partner. Also, it may be that the share left to a particular beneficiary does not take into account their particular circumstances such as having a disability or being without any emergency money.

A challenge to a will must be applied for within 6 months of the grant of probate being made (probate is the process of certification of a will by the Supreme Court) or ‘letters of administration’ in the case of someone passing away without a will.

It should be said that merely having statutory standing to challenge a will does not say anything about the merits of such an application. The Court’s primary focus is whether a beneficiary has been adequately provided for. Whether you are defending or considering making a claim you should obtain specialised legal advice.

675 views0 comments


bottom of page