Quick summary:
- In WA, eligible family members can challenge a Will if adequate provision wasn’t made for them
- Courts use a two-stage test – first, was provision adequate? If not, what should it be?
- There’s no fixed formula; the outcome depends on financial need, the relationship, contributions, and more
- Adult children aren’t automatically entitled – the deceased’s reasons for their decision carry real weight
- This matters whether you’re making a claim or trying to protect an estate
We often see in Hollywood films, dramatic “readings of the Will” where family members discover they’ve been excluded or received far less than expected.
Under Western Australian law, however, those individuals may have the right to make a claim. At the heart of such a claim is a deceptively simple question: was adequate provision made?
The legislative framework
In Western Australia, family provision claims are governed by the Family Provision Act 1972 (WA). This Act allows those eligible to seek an order from the court that further provision be made for them from the estate of the deceased person, if the court ultimately finds that adequate provision has not otherwise been made.
So, who is eligible?
1. Spouse/ de facto partner;
2. Children (including adult children);
3. Dependants and former dependants; and
4. Step-children and grandchildren (in special circumstances).
The two-stage test
The court undertakes a two-stage analysis to assess whether adequate provision was made, with a particular focus on the claimant’s future maintenance, support, education, and advancement in life.
This is not simply whether someone received less than they hoped for. Rather, it involves an objective assessment of whether the provision made fails to meet their legitimate needs and claims on the estate.
If the court concludes that adequate provision was not made, the next step is what the further provision should be.
What does the Court consider?
In assessing whether provision was adequate, and in determining what further provision to order, courts consider a wide range of factors.
The applicant’s financial position
This means the applicant’s assets, income, liabilities, earning capacity and financial needs – both current and reasonably anticipated. Demonstrating financial need is not prerequisite, but its presence or absence carries significant weight.
The nature of the relationship
The closeness of the relationship between the applicant and the deceased, including the history of that relationship, periods of estrangement, and the nature of any care or support provided.
Contributions to the estate
Whether the applicant made financial or non-financial contributions to the deceased’s estate or welfare. For example, this may include caring for an elderly parent or contributing to a family business.
The size and nature of the estate
A larger estate generally provides greater scope to make provision. The court will also take into account any competing claims from other beneficiaries, as well as the deceased’s moral obligations toward them.
The deceased’s intentions
The Court does not disregard the deceased’s wishes. It will consider the terms of the Will and any reasons given for the chosen distribution. While these reasons are not binding, they remain relevant to the overall assessment.
The applicant’s character and conduct
Conduct that estranged the applicant from the deceased, or behaviour that diminished the moral claim on the estate, may reduce or extinguish what the court is prepared to order.
What “adequate provision” looks like in practice
There is no fixed formula, and court decisions can vary significantly from case to case. Depending on the circumstances, the court has awarded anything from relatively modest sums to a substantial portion, or even the majority of an estate.
One point the court has made clear is that adult children are not automatically entitled to provision simply because of their relationship with the deceased. The court will closely examine the reasons behind the deceased’s decision to exclude them or limit their share.
Preparation is your strongest defence
For those making a claim, understanding these factors is key to assessing the strength of their case and how it should be presented. For those seeking to protect an estate, the same considerations are equally important at the time of drafting a Will – including clearly documenting the reasons behind its terms. A Will that anticipates a potential challenge, and addresses it directly, is far harder to overturn than one that doesn’t.
Whether you’re considering a claim or want to make sure your estate is properly protected, the strength of your position depends on preparation. At Solomon Hollett Lawyers, we guide clients through family provision claims on both sides, with the clarity, fairness and precision the process demands.
Book your consultation with our estate planning lawyers today, and get clarity before it becomes a dispute.
Frequently asked questions about adequate provision
Who can make a family provision claim in Western Australia?
Eligible claimants include spouses, de facto partners, children (including adult children), dependants, and in certain circumstances, stepchildren and grandchildren. Eligibility is set out under the Family Provision Act 1972 (WA).
What does “adequate provision” actually mean?
There’s no fixed definition. Courts assess whether the provision made – or not made – fails to meet the claimant’s legitimate needs, considering their financial position, the relationship with the deceased, and a range of other factors.
Can adult children challenge a Will in WA?
Yes, but it’s not automatic. Courts will closely examine the nature of the relationship, the reasons the deceased made their decision, and whether the adult child has a genuine need or moral claim on the estate.
Does the deceased’s intention in their Will matter to the court?
It does. The court considers the terms of the Will and any documented reasons behind its distribution. While those reasons aren’t binding, they carry real weight in the overall assessment.
What can I do to reduce the risk of a family provision claim against my estate?
Careful drafting and clear documentation of your reasons at the time of making your Will are among the most effective steps. Taking legal advice early – rather than after a dispute arises – significantly reduces the risk of a successful challenge.
Dealing with an inheritance dispute, estate administration or probate matter?
Book a free 15 minute phone call with one of our lawyers today.
