When families are facing potential disputes over an estate, a Deed of Family Arrangement can be a powerful tool to avoid costly and emotionally draining litigation. But can it actually prevent a Will contest? The answer is nuanced, and understanding how these arrangements work under Western Australian law could save your family significant heartache and expense.
What is a deed of family arrangement?
A Deed of Family Arrangement (also called a Family Arrangement or Deed of Variation) is a legally binding agreement between beneficiaries and potential claimants that varies how an estate will be distributed – essentially rewriting the terms of the Will or the intestacy rules by mutual agreement.
These arrangements are relatively common in Western Australia and can be an elegant solution when all parties recognise that a varied distribution of an Estate is fairer, more practical, or simply preferable to the uncertainty and cost of litigation.
When can a deed of family arrangement work?
The key word is “agreement.” A Deed of Family Arrangement requires all relevant parties to voluntarily consent to the new distribution. When everyone can come together and negotiate in good faith, these arrangements can:
Resolve potential family provision claims
Under Western Australia’s family provision laws, certain eligible persons can apply to court if they haven’t received adequate provision from an estate. A spouse, de facto partner, child, stepchild, or someone who was financially dependent on the deceased might have grounds for a claim.
Rather than waiting for a claim to be filed and proceeding through months of litigation, families can negotiate a Deed of Family Arrangement that provides the potential claimant with provision they consider adequate, in exchange for them agreeing not to pursue a court claim. This has the potential to save families from the stress of litigation and preserve family harmony.
Address practical issues
Sometimes the terms of a Will, while legally valid, create practical problems. Perhaps the Will requires the family home to be sold, but the surviving spouse wants to remain there. A Deed of Family Arrangement might see other beneficiaries agree to reduced cash distributions in exchange for the spouse retaining the home.
Minimise tax consequences
In some cases, the distribution under a Will might trigger adverse tax outcomes. Beneficiaries might agree to vary the distribution to achieve a more tax-effective result, particularly where testamentary trusts weren’t used but could benefit the family.
Preserve family relationships
Even when a Will is legally valid, family members might recognise that the distribution doesn’t feel fair, sometimes due to changed circumstances since the Will was made. Rather than having one family member contest the Will and risk damaging relationships, everyone might agree to a variation that feels more equitable.
Get our ultimate FAQ guide on all things inheritance, Wills, estates and succession.
The limitations: when a deed can’t prevent a contest
Here’s the critical limitation: a Deed of Family Arrangement only works if everyone agrees. You cannot force someone to enter into such an arrangement, and it cannot prevent a Will contest if:
Someone refuses to sign
If even one beneficiary or potential claimant refuses to agree to the arrangement, it cannot proceed. That person retains their right to contest the Will through the courts.
The Will is invalid
If there are legitimate concerns about the Will’s validity—lack of testamentary capacity, undue influence, fraud, or failure to meet formal requirements under the Wills Act 1970 (WA) — these issues cannot be resolved by a family arrangement. Questions of validity must be determined by the Court.
A party lacks capacity
All parties entering a Deed of Family Arrangement must have legal capacity to do so. If a beneficiary is a minor or lacks mental capacity, you cannot simply arrange around them—proper legal protections must be in place.
Time has run out
In Western Australia, family provision claims must be brought within six months of the grant of probate (though the Court has discretion to extend this in limited circumstances). If this deadline has passed, some parties lose their leverage to negotiate, though beneficiaries can still voluntarily agree to vary the distribution.
The process: how to use a deed of family arrangement effectively
If you’re an executor facing potential disputes, or a beneficiary concerned about a Will contest, here’s how to approach a family arrangement:
Act early
The best time to explore a family arrangement is before positions become entrenched and before substantial legal costs are incurred. Early, open conversations about concerns can often lead to negotiated solutions.
Get everyone to the table
All beneficiaries and anyone who might have a claim against the estate should be involved in discussions. Leaving someone out can lead to future problems.
Obtain independent legal advice
Each party should receive independent legal advice about their rights and the implications of the proposed arrangement. At Solomon Hollett Lawyers, we regularly advise individuals on whether a proposed family arrangement is in their best interests, or whether they should pursue their entitlements through the courts.
Document everything properly
A family arrangement must be properly documented in a formal Deed that’s executed by all parties. Informal agreements or handshake deals are not enforceable and won’t prevent future disputes.
Consider tax and other consequences
Some variations can trigger capital gains tax or stamp duty implications. Professional advice ensures the arrangement achieves its objectives without unintended consequences.
File with the court if required
In some circumstances, particularly where minors or protected persons are involved, Court approval may be required for the arrangement to be binding.
The role of negotiation and mediation
Even when initial positions seem far apart, skilled negotiation or formal mediation can often bring parties to agreement. At Solomon Hollett Lawyers, we regularly facilitate these discussions, helping families find middle ground that avoids the cost, delay, and emotional toll of litigation.
Mediation has the advantage of being confidential, less formal than court proceedings, and allows for creative solutions that a judge couldn’t order. Many families find that with skilled assistance, they can reach agreements they initially thought impossible.
When litigation is unavoidable
Sometimes, despite best efforts, a Deed of Family Arrangement isn’t possible. This might be because:
- Parties have fundamentally incompatible positions
- There are genuine questions about the Will’s validity that need court determination
- One party is being unreasonable or acting in bad faith
- The issues are too complex to resolve without judicial guidance
In these situations, understanding your rights and having experienced litigation support becomes essential.
Take the first step toward a fair and lasting resolution
A Deed of Family Arrangement can be an excellent tool for preventing Will contests—but only when all parties are willing to negotiate in good faith. It cannot override fundamental legal requirements or force unwilling parties to compromise.
The key is early engagement, open communication, and experienced legal guidance to navigate the process effectively.
Whether you’re an executor hoping to avoid disputes, a beneficiary concerned about fairness, or someone considering a family provision claim, we can help you understand your options and work toward the best outcome for your family – whether that’s through negotiated settlement, mediation or, if necessary, court proceedings to ensure we help you navigate to the right outcome.
Get in touch with our inheritance dispute lawyers to understand your options.
