When a brother or sister passes away, the grief can quickly turn into a complicated situation. The Will may have left you out, it may have included your other siblings, it may have handed everything to people outside your bloodline family trust altogether. The natural next question is whether you, as a sibling, can contest a Will.
In Western Australia (‘WA‘) the answer is not generally what people expect. It comes down to the meaning of ‘contest’ and your relationship to the estate.
Short answer
- In WA a sibling is not an eligible person pursuant to the Family Provision Act 1972 (WA) (‘Act‘).
- There is a difference between commencing a claim pursuant to the Act and challenging whether a Will is valid. A sibling may be able to challenge the validity of a Will if they would inherit under an earlier Will or under intestacy rules.
Family provision vs validity
People use the term ‘contesting a Will’ to mean two very different legal actions.
Usually when people use the term ‘contesting a Will’ they mean an eligible person (as defined by the Act) commencing an action pursuant section 6 of the Act. An action pursuant to section 6 of the Act when the eligible person is asking the Supreme Court to make an order that they be granted a share, or a larger share, of an estate, based on the fact that they were not adequately provided for.
A sibling is an ‘eligible person’ pursuant to section 7 of the Act. Section 7 of the Act defines an ‘eligible person’ to include spouses, de-facto partners, children, parents and in limited circumstances stepchildren and grandchildren.
Siblings, nieces, nephews, cousins and friends are not included as an ‘eligible person’. The list of eligible people in WA is narrow and to the surprise of some people, narrower than other states.
Challenging a Will means disputing the validity of the Will in its entirety. A sibling may very well be a person who can challenge the validity of the Will if they stand to benefit from the estate if the Will is set aside.
When siblings can challenge
Challenging a Will has a much different path. When you ‘challenge’ a Will, you are not asking for a share (or a greater share) of the estate, you are arguing the Will in its entirety should be set aside.
In order to challenge the Will the applicant must show that they have an interest in the Estate. This can arise from receiving a share of the estate or a gift from the estate in the earlier Will or under the rules of intestacy if no valid will exists.
The intestacy rules in WA matter for siblings. When someone passes away without a Will and without a spouse, de-facto partner or children, their estate can pass to parents (if they are still alive) and then to siblings. In this situation, a sibling may have an interest in the deceased’s estate.
Check in just minutes if you have grounds to make an inheritance claim, or defend your position.
Grounds to challenge
A challenge on the validity of a Will needs a real legal basis and evidence. It is not just a sense that something isn’t right or that a previous Will left you an entitlement that the new Will does not. These challenges can occur from the following:-
- A lack of testamentary capacity. That being that the person did not have the requisite testamentary capacity to make a new Will.
- Undue Influence. Being that the deceased was pressured or coerced into making the new Will.
- Fraud or forgery. The new Will or the signatures on the Will are not genuine.
These are serious claims and have high thresholds of proper evidence. Evidence may include medical records, witness statements and solicitor’s files. A challenge to the validity of a Will cannot be commenced of suspicion alone.
Where this leaves you
If you are a singling who feels wronged, your path forward depends entirely on the facts. Sometimes challenging the validity of a will is not an issue worth pursuing. The calmer and wiser approach is understanding your position clearly before bringing any action.
Going into these conversations informed protects both your interests and your family relationships. These matters are as much about the people as they are about the law. A steady and considered approach usually serves everyone better than a rushed one.
Our inheritance disputes and estate litigation team can help you understand your position as it applies to your specific circumstances honestly and without inflaming a conflict that may not need to grow.
Tackling different expectations about fairness and unclear provisions in a Will.
FAQ
Can a sibling contest a Will if they are left out?
Not through a claim under the Family Provision Act 1972 (WA). However, there may be the ability to challenge the Will’s validity if they have an interest and proper grounds.
Who can make a family provision claim in WA?
Section 7 of the Act defines an ‘eligible person’ to include spouses, de-facto partners, children, parents and in limited circumstances stepchildren and grandchildren.
What happens if there is no valid Will?
If there is no valid Will the rules of intestacy as outlined in the Administration Act 1903 (WA) applies. The formulas contained within the Administration Act 1903 (WA) follow the survival of the deceased’s family tree. If the deceased does not have a surviving spouse, de-facto partner, children or parents, siblings may inherit.
How long do I have to act?
Even though siblings cannot make family provision claim, it is worth noting that family provision claim must be made within 6 months from the Grant of Probate or Letters of Administration. There are limited circumstances in which the time limit can be extended. Validity challenges are best raised prior to a Grant of Probate, but ideally before the estate is distributed.
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