Key Takeaways
- Defending a Will in WA ordinarily involves responding to either a Family Provision Claim or a challenge to the validity of the Will itself.
- Executors are responsible for administering the deceased’s estate, while beneficiaries are the parties with the direct financial interest in defending the claim.
- The vast majority of Will disputes in Western Australia are resolved through negotiation or mediation before reaching a final Supreme Court trial.
- Strong evidence is critical when defending a Will, particularly in disputes involving undue influence, testamentary capacity, financial dependency, or family provision claims.
- Early legal advice is critical in protecting the estate, avoiding unnecessary escalation, and placing executors and beneficiaries in a stronger strategic position from the outset.
Defending a Will can feel deeply personal, but it is first and foremost a legal process. If you’re an executor or beneficiary facing a challenge to a deceased’s estate, it’s important to understand that a Will can be defended.
Our research found that 60% of Western Australians expect an inheritance dispute within their family. The prevailing undercurrent of these disputes being the feeling that a Will does not truly reflect the deceased’s intentions, or otherwise where the testator (person making the Will) failed to leave behind a clearly identifiable, locatable, and/or valid Will.
Receiving notice of a claim against the estate can be confronting, and oftentimes will cause considerable anxiety and stress associated with the feeling of uncertainty that arises when the claim is received. This guide explains how defending a Will works in Western Australia, the steps involved, and what executors and beneficiaries should know early.
What does it mean to defend a Will?
To defend a Will means to preserve the document in its current form, either by defeating a challenge which seeks to change the effect of the Will or otherwise to prevent it from operating as intended.
In Western Australia, these disputes usually arise in one of two ways.
1. Family Provision Claims
A Family Provision Claim is made when an eligible person argues they were left without adequate provision from the deceased’s estate under the Family Provision Act 1972 (WA).
A Family Provision Claim does not argue that the Will itself is invalid. Instead, the claim is essentially a request by the claimant to the Supreme Court to intervene in the operation of the Will by altering the distribution of the estate from the terms in which it was originally written.These claims are common in disputes involving spouses, de facto partners, adult children, stepchildren, and blended families. Defending these claims often involves protecting beneficiaries from an overstated or weak claim, while also weighing the financial circumstances of everyone involved.
2. Challenges to the validity of a Will
Some disputes go further and challenge the validity of the Will itself.
This can include allegations of undue influence, lack of testamentary capacity, fraud, suspicious circumstances, or concerns about how the Will was prepared and signed. If you want to better understand how these allegations arise, you can read our guide on proving undue influence in a Will.
These matters are often evidence-heavy and may involve medical records, witness evidence, solicitor file notes, and detailed examination of the deceased’s intentions and state of mind at the time the Will was made.
Importantly, these disputes are expensive in both the time it takes to pursue, and the costs ordinarily involved in supporting the claim. Additionally, challenges to the Will itself have a tendency to become emotionally charged, particularly where the opposing parties are family members.
In cases where a Will has been challenged, it is crucial to remember that a claim is just that, a claim, and therefore receiving notice of the claim does not mean the challenge has merit, or will ultimately succeed.
Who defends a Will in Western Australia?
One of the most misunderstood parts of defending a Will is understanding who’s actually responsible for defending the claim.
In Western Australia, the executor is responsible for administering the deceased’s estate and carrying out the terms of the Will. This includes applying for a Grant of Probate, identifying estate assets and liabilities, and ensuring the estate is managed properly during any court proceedings. If you want to better understand the role itself, you can read our guide on what an executor of a Will does.
However, in many inheritance disputes, it’s the beneficiaries who have the direct financial interest in defending the Will. This is because any successful Family Provision Claim or settlement may reduce the share they were originally entitled to receive.
The executor’s role is usually more neutral and procedural. They’re expected to preserve the estate, comply with Court directions, and avoid distributing the estate while the claim remains unresolved. Executors must also act carefully where tensions between family members are escalating, particularly in blended families, estrangement disputes, or claims involving a de facto partner or adult child.
Beneficiaries, on the other hand, may choose to actively defend the deceased’s wishes and oppose the claim being made against the estate.
Understanding these roles early is important. Executors and beneficiaries often have different obligations, risks and legal considerations throughout the dispute.
What should you do first if a Will is challenged?
If a Will is challenged in Western Australia, the worst thing you can do is react emotionally or move too quickly. Early decisions can affect the estate, the beneficiaries, and the direction of the dispute itself.
At the outset, it’s usually important to:
- avoid distributing the deceased’s estate too early;
- identify the type of claim being made;
- preserve relevant documents, records and communications;
- understand any applicable time limits;
- avoid unnecessary conflict between family members; and
- seek legal advice before responding formally.
Some claims are resolved relatively quickly. Others become more complex and proceed through the Supreme Court of Western Australia. Understanding the nature of the challenge early often places executors and beneficiaries in a much stronger position moving forward.
How is a Will defended? The process in Western Australia
1. Assess the claim early
The first step to any defence is to understand the nature and strength of the claim being made against the deceased’s estate.
This will involve assessing:
- whether the claimant is eligible to bring the claim;
- whether any time limits apply;
- the financial position of the claimant and beneficiaries;
- the size and structure of the estate; and
- the evidence available to support or defend the claim.
It is important to remember that not every person connected to the deceased automatically has a valid claim against the estate. A significant part of defending a Will involves analysing the legal and factual strength of the challenge from the outset.
2. Pausing distribution of the estate
Once a claim is made, the estate will ordinarily need to remain undistributed while the matter is resolved.
This is particularly important for executors. Distributing assets too early can expose executors to personal risk if the Court later determines further provision should have been made from the estate. We discuss this in more detail in our guide on when assets of a deceased estate can be distributed.
In practice, this can mean funds, property, or other estate assets remain tied up until the dispute is finalised or settled.
3. Gather evidence and developing strategy
At this stage, attention turns to gathering the evidence needed to defend the Will and assess the best path forward.
Depending on the dispute, this can include:
- the Will and earlier Wills;
- solicitor file notes;
- medical records;
- financial records;
- witness statements;
- evidence about family relationships; and
- evidence relating to the deceased’s intentions.
This is also where legal strategy becomes important. In nearly all cases, claims are better resolved through early negotiation. Only occasionally will a claim require a firmer defence position from the beginning.
4. Negotiation and mediation
In nearly all circumstances, trial should be a last resort as a mechanism to resolve an inheritance dispute. Trials are inordinately expensive in both time and the funds required to see them through to completion, ordinarily costing hundreds of thousands of dollars per party, and taking years to run a matter from the initial proceedings through to completion of the trial.
The above in mind, it is then unsurprising that most inheritance disputes in Western Australia resolve before trial.
Once the parties understand the strengths and weaknesses of the matter, negotiations often begin between the lawyers involved. In many cases, the Supreme Court will also direct the matter toward mediation.
Mediation is a structured settlement conference designed to resolve the dispute without the cost and delay of a full hearing. It’s common for parties to reach an agreement here, particularly once evidence and litigation risks become clearer.
Importantly, settlement discussions can occur at almost any stage of the proceedings, including very late in the dispute.
5. Filing an appearance and progressing through Court
It is important to note that oftentimes parties can reach a negotiated outcome without the need to commence court proceedings. In most cases, there is no requirement for parties to enter into an appearance to resolve a dispute.
However, if formal court proceedings are commenced, beneficiaries defending the claim will usually need to file an Appearance in the Supreme Court of Western Australia.
This is a procedural document notifying the Court that the claim will be defended. It doesn’t set out the full defence itself.
From there, the matter may proceed through case management conferences, directions hearings, evidence preparation, and mediation as the Court manages the progression of the dispute.
6. Preparing for trial if the matter does not resolve
If mediation is unsuccessful, the matter may proceed to trial before the Supreme Court of Western Australia.
At trial, the Court considers the evidence from all parties before determining whether the claim succeeds and whether the distribution of the estate should change.
Trials can involve extensive financial evidence, medical evidence, witness testimony, and detailed examination of family circumstances. However, only a relatively small number of inheritance disputes ultimately proceed all the way to a final hearing.
Get our ultimate FAQ guide on all things inheritance, Wills, estates and succession.
What evidence is needed to defend a Will?
Strong evidence is often what shapes the direction of a Will dispute early. In Western Australia, defending a Will is rarely ever about one document or one conversation alone. The Court looks at the broader picture surrounding the deceased, the estate, the family relationships involved, and the circumstances in which the Will was made.
Depending on the nature of the claim, important evidence may include:
- the final signed Will and any earlier Wills;
- solicitor file notes and records relating to the preparation of the Will;
- written instructions given by the deceased;
- medical records, particularly where testamentary capacity is in dispute;
- witness evidence from the people involved in signing the Will;
- financial records relating to the estate, beneficiaries, and claimant;
- evidence of financial support, gifts, loans or contributions made during the deceased’s lifetime;
- communications between family members and the deceased;
- evidence relating to estrangement, dependency, or caregiving relationships; and
- records showing the deceased’s intentions and reasoning behind their decisions.
In Family Provision Claims, the financial position of both the claimant and the beneficiaries often becomes highly relevant. In challenges involving undue influence or lack of capacity, medical evidence and solicitor records can become central to the defence.
Importantly, evidence often influences negotiations, mediation, and settlement discussions much earlier in the process. Strong evidence can narrow disputes quickly, clarify risk, and place executors and beneficiaries in a far stronger position when responding to a claim against the deceased’s estate.
Strategy matters: firm defence, negotiation or mediation?
Defending a Will successfully often comes down to strategy as much as legal principles. Every dispute is unique, and so naturally should be approached in a bespoke way. Though, the right response will usually depend on the strength of the evidence, the risks involved, and the broader dynamics surrounding the dispute.
Tailoring the defence strategy
Some claims require a firm defence from the outset, particularly where the allegations are unsupported or the deceased’s intentions are well documented. Other matters may carry genuine litigation risk and are better approached through early negotiation before legal costs and delays begin affecting the estate itself.
A strong defence strategy usually involves considering:
- the strength of the claim being made;
- the quality of the available evidence;
- the size and structure of the estate;
- the financial position of the beneficiaries and claimant; and
- the likely cost and duration of court proceedings.
Every family, estate and claim carries different pressures and personal dynamics. In some situations, taking a matter all the way to trial may ultimately reduce the value of the estate for everyone involved. In others, settlement may not be appropriate at all, particularly where the defence position is strong.
The role of mediation in inheritance disputes
Mediation plays a crucial role in many inheritance disputes in Western Australia. Once the parties better understand the evidence and litigation risks involved, mediation can provide an opportunity to resolve the matter before trial.
The process allows the parties to negotiate in a structured setting with the assistance of lawyers, mediators and, in some cases, the Court itself. In many disputes, this is where practical commercial outcomes are reached and further strain on the estate is avoided. We explore this further in our article on how mediation can help protect family legacy during inheritance disputes.
Settlement discussions can also occur at almost any stage of the proceedings, including very late in the dispute.
Ultimately, defending a Will well requires careful judgement. The goal is to protect the estate, preserve what can be preserved, and respond strategically to the claim being made.
Read more: Mediation vs collaborative practice
What are the costs and risks of defending a Will?
Defending a Will in Western Australia can involve significant financial and personal costs, particularly where the dispute proceeds deep into Supreme Court proceedings or toward trial.
Legal costs in inheritance disputes can increase quickly as evidence is gathered, affidavits are prepared, and negotiations or mediation take place. If the matter ultimately proceeds to a final hearing, costs can become substantial for everyone involved.
There’s also a common misconception that all legal costs are automatically paid from the deceased’s estate. That’s not always the case. In some situations, the Court may order costs to be paid personally by a party, particularly where a claim or defence is considered unreasonable.
Other risks can include:
- lengthy delays in finalising and distributing the estate;
- increased strain between family members;
- emotional pressure on executors and beneficiaries;
- reduction in the overall value of the estate due to legal expenses; and
- uncertainty around the final outcome of the dispute.
For executors, there can also be personal risk if estate assets are distributed too early or the estate isn’t managed properly during the proceedings.
This is one reason early legal advice and careful strategy matter so much in inheritance disputes. A measured and commercially sensible approach can often preserve more of the estate and reduce unnecessary escalation.
What outcomes are possible?
In some disputes, the claim is unsuccessful and the original terms of the Will remain unchanged.
In others, the parties may reach an agreement through negotiation or mediation that changes how the deceased’s estate is distributed. This can include adjustments to the amounts received by beneficiaries or provision being made for an eligible claimant under the Family Provision Act 1972 (WA).
Where the matter proceeds to trial, the Supreme Court of Western Australia may decide to:
- dismiss the claim entirely;
- alter the distribution of the estate;
- make further provision for a claimant; or
- determine that the Will itself is invalid.
Importantly, inheritance disputes are rarely a simple “winner takes all” scenario. Many matters resolve through negotiated outcomes that reflect the legal risks, evidence, costs and family circumstances involved.
Read more: What can make a Will invalid?
Get advice before the dispute defines the estate
If you’re defending a Will or responding to a claim against a deceased’s estate, getting experienced legal advice early can make a significant difference to how the matter progresses. The right strategy early on can help protect the estate, preserve evidence, and reduce unnecessary cost and conflict as the dispute unfolds.
At Solomon Hollett Lawyers, our experienced Will defence lawyers in Perth help executors and beneficiaries across Western Australia navigate inheritance disputes with clarity, strategy and practical guidance. You can book a free 15-minute phone call with our team to discuss your situation and better understand the next steps available to you.
FAQs
Can a Will be defended in Western Australia?
Yes. A Will can be defended where someone challenges the validity of the Will or brings a Family Provision Claim seeking a greater share of the deceased’s estate. Defending the Will may involve responding through negotiation, mediation, or Supreme Court proceedings depending on the nature of the dispute and the evidence involved.
How long do you have to challenge a Will in WA?
In Western Australia, Family Provision Claims generally need to be commenced within six months from the date Probate or Letters of Administration are granted. While extensions are possible in limited circumstances, they are not guaranteed and should not be relied upon.
Does defending a Will always go to court?
No. Many inheritance disputes in Western Australia resolve through negotiation or mediation before reaching a final hearing. Even where Supreme Court proceedings are commenced, settlement discussions often continue throughout the dispute and can resolve the matter before trial.
What happens if the Court changes the Will?
If a claim is successful, the Supreme Court of Western Australia may alter how the deceased’s estate is distributed. This can involve making further provision for an eligible claimant or adjusting the share received by beneficiaries under the Will.
Can a de facto partner challenge a Will?
Yes. In some circumstances, a de facto partner may be eligible to bring a Family Provision Claim under the Family Provision Act 1972 (WA) if they believe they were left without adequate provision from the estate. Whether a claim succeeds will depend on the evidence, the nature of the relationship, and the financial circumstances involved.
Can you defend a Will without a lawyer?
It is technically possible to defend a Will without legal representation, but inheritance disputes in Western Australia can become legally and procedurally complex very quickly. Issues involving evidence, Court procedure, time limits, mediation and estate administration can significantly affect the outcome of the matter, particularly once Supreme Court proceedings are involved.
Dealing with an inheritance dispute, estate administration or probate matter?
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