Not all close relationships are blood relatives. You may call someone ‘family’ when in fact they are a devoted carer, a lifelong friend, a stepchild or a long-term partner. These people sit outside the traditional blood relative family tree, however, may carry the expectation that they be remembered within a Will. If they are then not recognised within the Will, the next question follows is usually, can I challenge the Will?
In Western Australia (‘WA‘), the answer is much narrower than people may expect. What can make matters more confusing, is the answer is even narrower than in some other states within Australia.
However, ‘non-family’ can cover a lot of ground, and some ‘non-family’ members may have more rights than they realise
Don’t have time? Here’s the short answer
- In WA only an ‘eligible person’ can make an application pursuant to the Family Provision Act 1972 (WA) (‘Act‘).
- Carers, friends and some dependants are not classified as an ‘eligible person’.
- De-facto partners and stepchildren (in some circumstances) are an ‘eligible person’.
- A non-family member may still challenge a Will’s validity.
- The key is, if you are unsure, it is worth checking rather than assuming your position.
Who can make a family provision claim in WA?
If an eligible person has been left out of a Will or has been left an inadequate share of the estate, they may consider making an application to the Supreme Court under section 6 of the Family Provision Act 1972 (WA) (‘Act‘). The application is essentially asking the Supreme Court to make an order that the applicant be granted a share, or a larger share, of an estate, based on the fact that they were not adequately provided for. This is colloquially known as ‘challenging the Will’ or a ‘family provision claim’.
Under section 7 of the Act, the following are an ‘eligible person’ who can bring such an application:-
- A spouse or de-facto partner at the time of death;
- A former spouse or de-facto partner who was receiving or entitled to maintenance;
- A child of the deceased (at any age);
- A grandchild, in particular circumstances;
- A stepchild, in particular circumstances; and
- A parent of the deceased.
If you are not an ‘eligible person’ you cannot make a family provision claim in WA, no matter how much of a close or ‘family like’ relationship you shared with the deceased.
Check in just minutes if you have grounds to make an inheritance claim, or defend your position.
The Gap
There is a critical difference between WA and other states like NSW. WA has no general ‘dependant’ or ‘household member’ category.
Meaning the devoted carer who gave up years to look after someone, the cousin who shared a close relationship with the deceased or the close friend who was financially supported by the deceased cannot make a claim under the Act, no matter the genuine dependence on the deceased. This can feel harsh however it is the law as it currently stands within WA.
De-facto Partners
Often people assume without a marriage certificate, they automatically have no rights. That is a myth that is worth busting.
In WA, a de-facto partner is an eligible person to bring a claim under the Act. Much the same as someone who does hold the marriage certificate. If you in a de-facto relationship immediately before your partner’s passing, you may well be entitled to make a claim under the Act. What matters is the genuine nature of your relationship, not the Will itself.
Challenging the Wills Validity
Not being an eligible person under the Act doesn’t mean the door is automatically closed.
A non-family member may still be able to challenge whether the Will is valid. However, this is a separate application altogether and is not a family provision claim. To do this, you generally need to hold an ‘interest’ in the estate. This may mean you were beneficiary under an earlier Will or would be a beneficiary under the rules of intestacy.
Challenging a Will’s validity an occur where the deceased lacking testamentary capacity, meaning they did not understand the Will, the deceased was the subject of undue influence and was pressured into making the new Will or there was some kind of fraud or forgery.
If you were left a gift in a previous Will that the alleged new Will does not include and the alleged new Will came about in suspicious circumstances, you may have grounds to challenged the validity of the new Will.
What Next
Family provision claims in WA follow specific rules articulated within the Act. Unfortunately, closeness in a relationship is not the test that the law applies. However, the categories are broader than a strict bloodline family tree and can include people like de-facto partners and stepchildren.
Our inheritance disputes team can assist you with your path forward. Likewise, if you are planning your own estate, careful estate planning can make sure the people you care about are properly protected.
Speak with our team to find out where you stand.
FAQ
Can a carer or friend contest a Will in WA?
Not through a claim under the Family Provision Act 1972 (WA). The Act here in WA (unlike other states) has no general dependant category. However, there may be the ability to challenge the Will’s validity if they have an interest and proper grounds.
Can a de facto partner make a claim?
Yes. In WA, a de facto partner is an eligible person, the same as a married spouse.
Can a stepchild contest a Will?
In certain circumstances, yes. Stepchildren are eligible under limited conditions, so it is worth checking your specific position.
I was in an earlier Will but removed from the latest one. Can I do anything?
Possibly. If you were a beneficiary under a previous Will, you may be able to challenge the validity of the later Will if there are suspicious circumstances around the creation of the new Will.
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