Key Takeaways
- A family provision claim in Western Australia is made under the Family Provision Act 1972 (WA) and asks the Supreme Court to consider further provision from a deceased person’s estate.
- A claim can be made where there is a Will, or where the deceased person died without a Will and the estate is being distributed under intestacy laws.
- Only certain people can bring a claim, including a spouse or de facto partner, certain former partners, children, certain grandchildren, certain stepchildren, and a parent of the deceased.
- The usual time limit is six months from the grant of probate or letters of administration, not six months from the date of death.
- Most family provision claims resolve through negotiation or mediation, but the Court can decide the outcome where the parties cannot reach agreement.
- The strength of a claim depends on the claimant’s circumstances, the size of the estate, any competing claims and the relationship between the claimant and the deceased.
When someone passes away, the terms of their Will can leave people with difficult questions.
Why was one person provided for and another left out? Why was the estate divided that way? What happens if the outcome leaves a spouse, child, de facto partner or other eligible family member without adequate provision?
In Western Australia, these questions often arise through a family provision claim. It is one of the main legal pathways for eligible people who believe a deceased estate has not made adequate provision for them.
For families already under pressure, understanding where you stand early can make all the difference. There are deadlines to understand, evidence to gather and often, sensitive family dynamics to navigate.
What is a family provision claim?
A family provision claim is a claim made under the Family Provision Act 1972 (WA). It’s the Western Australian legal pathway for asking the Supreme Court to make further provision from a deceased person’s estate for your proper maintenance, support, education or advancement in life
The claim can arise in two situations:
- where the deceased person left a Will; or
- where the deceased person died without a Will and the estate is being distributed under intestacy laws.
A family provision claim usually proceeds on the basis that the Will is valid. The question is not whether the Will should be declared invalid due to concerns about the deceased’s testamentary capacity, undue influence or suspicious circumstances at the time the Will was prepared.
A family provision claim starts from a different place. It accepts the legal framework for the estate, but asks whether the result has failed to provide for someone who falls within the categories recognised by the Act.
This is why these claims are often described as a way of contesting a Will, but they’re not the same as saying the Will should be struck down. The focus is on whether the estate should be adjusted by Court order.
Who can make a family provision claim in WA?
The Family Provision Act 1972 (WA) sets out the categories of people who may be eligible to bring a claim.
Being related to the deceased does not, by itself, mean a person can make a claim.
Spouse or de facto partner
A spouse or de facto partner may be eligible if they were married to, or living in a de facto relationship with, the deceased immediately before death.
This includes relationships where the couple lived together as partners, even if they weren’t formally married.
Former spouse or former de facto partner
A former spouse or former de facto partner may be eligible, but only in limited circumstances.
Generally, they must have been receiving maintenance from the deceased, or legally entitled to receive maintenance from them, immediately before the deceased’s death.
Child of the deceased
A child of the deceased may be eligible to make a family provision claim, including adult children. A person doesn’t need to be under 18 or financially dependent to fall within this category.
A child born within 10 months after the deceased person’s death may also be eligible.
Grandchild of the deceased
A grandchild may be eligible, but only in specific circumstances.
This usually requires more than simply being a grandchild. For example, eligibility may arise where the grandchild was being maintained, wholly or partly, by the deceased immediately before death or if their parent (who was the child of the deceased) had predeceased the deceased.
Stepchild of the deceased
A stepchild of the deceased may be eligible in Western Australia, but the rules are narrow and need careful attention.
A stepchild may be able to claim if they were being wholly or partly maintained by the deceased, or were entitled to be maintained by them, immediately before death.
They may also be eligible where the deceased received, or was entitled to receive, property from the estate of the stepchild’s parent, and the value of that property exceeded the prescribed amount. The current prescribed amount under the regulations is $517,000.
This is a WA-specific issue and is often misunderstood in blended families.
Parent of the deceased
A parent of the deceased may also be eligible in certain circumstances. This can include a parent whose relationship with the deceased was admitted by the deceased during adulthood, or otherwise established during the deceased’s lifetime.
Eligibility is only the starting point. Being allowed to bring a claim does not mean the claim will automatically succeed.
Check in just minutes if you have grounds to make an inheritance claim, or defend your position.
The six-month time limit for family provision claims in WA
Once you know you may be able to bring a claim, the next question is timing.
In Western Australia, a family provision claim must be made within six months of the grant of probate or letters of administration. If there is a Will, probate is the formal Court process that confirms the executor’s authority to administer the estate. If there is no Will, letters of administration serve a similar purpose for the administrator.
This is an important distinction. The deadline doesn’t run from the date of death itself. It runs from the point where the executor or administrator has formal authority to deal with the estate.
The Supreme Court can allow a claim to be made after the six-month period, but this requires a separate application to seek the leave of the Court to file the family provision claim out-of-time.should never be treated as a safety net. Out-of-time applications are harder, more uncertain, and can become especially difficult if the estate has already been distributed.
Delay can also affect the practical outcome. Even where a claim is legally possible, recovering estate assets after distribution may be more complicated.
What does “adequate provision” mean?
In a family provision claim, the central question is whether the deceased made adequate provision for the claimant’s proper maintenance, support, education or advancement in life.
That phrase is important. It doesn’t mean every family member must receive the same share. It also doesn’t mean the Court will rewrite a Will simply because someone feels hurt, disappointed or treated unfairly.
There is no fixed dollar amount that counts as adequate provision. The answer depends on the circumstances of the estate and the person making the claim. Effectively, each matter needs to be dealt with in its unique circumstances.
The question is not whether the distribution was equal, but instead, whether it was adequate in the circumstances.
Get our ultimate FAQ guide on all things inheritance, Wills, estates and succession.
What does the Court look at?
When deciding whether adequate provision has been made, the Court looks at the full circumstances of the estate and the person making the claim.
This includes:
- the claimant’s financial position, including income, assets, debts and future needs
- the size and nature of the estate
- the relationship between the claimant and the deceased person
- whether the claimant depended on the deceased for housing, income or other support
- the needs of other beneficiaries or family members
- any contributions the claimant made to the deceased’s welfare, property or affairs
Equal distribution and fair distribution are different things. An adult child with serious financial hardship, illness or disability can have a very different need from a sibling who is financially secure. A de facto partner who relied on the deceased for housing can be in a different position from a beneficiary who already owns a home and has a stable income.
The reverse is also true. Unequal provision can be lawful where the circumstances justify different treatment between beneficiaries.
The outcome turns on the whole picture.
The process of making a family provision claim in WA
The process of making a family provision claim is structured, but it is not always linear.
Some matters are resolved through early correspondence and negotiation. Others need to be filed in the Supreme Court before the parties have enough information to meaningfully assess their positions and potentially reach a sensible resolution.
The path will depend on the circumstances of the estate, the claimant, the beneficiaries and the level of disagreement and mistrust.
1. Get early legal advice
The first step is to understand whether you can bring a claim and whether the claim has merit.
Early legal advice usually involves reviewing the Will, identifying whether a grant of probate or letters of administration has been made, checking the six-month deadline, and assessing the broad value of the estate. It also helps clarify whether there are risks in waiting, especially if the executor or administrator is preparing to distribute assets.
Early advice can also identify whether there is a risk that the estate may be distributed before the claim is properly addressed.
The aim is not necessarily to start Court proceedings immediately.
It is to understand the available routes before important options disappear.
2. Gather the evidence
A family provision claim depends heavily on evidence. This often includes:
- financial documents, including income, expenses, assets, debts and liabilities;
- medical records or evidence of care needs;
- information about your relationship with the deceased;
- evidence of financial dependence or support;
- records of contributions to the deceased’s welfare, property or affairs;
- relevant messages, letters, promises or family communications; and
- evidence about gifts, loans or financial support provided during the deceased’s lifetime.
This evidence helps show the Court the full picture.
3. Notify the executor or administrator
In many cases, the executor or administrator is notified before proceedings are filed.
This can help prevent premature distribution of the estate and open the door to early negotiation.
For executors and administrators, this is equally important. Distributing an estate while a potential family provision claim remains unresolved can create additional risks.
4. File in the Supreme Court
If the matter cannot be resolved early, the claim is filed in the Supreme Court of Western Australia. Our guide on how long a family provision claim takes explains that this involves a summons being filed and served on the executor and other relevant parties.
Once the proceedings commence, the matter follows the Court’s timetable and includes disclosure, evidence and directions from time to time until the matter is determined.
5. Disclosure, negotiation and mediation
Court proceedings do not necessarily mean the matter will end up in a trial.
Once the claim is underway, the parties exchange information about the estate, the claimant’s circumstances, and the position of other beneficiaries.
Most family provision claims resolve through negotiation or mediation. Mediation gives each side a clearer view of the risks, costs and likely outcomes before a matter reaches trial.
A mediator can help the parties identify the risks of continuing, the likely costs, the competing interests involved and whether there is a settlement that provides a commercially sensible outcome.
6. Trial, if needed
If agreement cannot be reached, the matter can proceed to trial.
At the trial, a Judge then decides whether further provision should be made from the estate and, if so, what form that provision should take.
A trial, therefore, is one possible destination – but is not necessarily the destination every family provision claim needs to reach.
Do family provision claims usually go to trial?
Most family provision claims resolve before a final trial.
Mediation is often the key turning point. It gives each side a structured opportunity to assess the claim, understand the likely costs, weigh the risks and explore settlement before the Court is asked to decide the outcome.
Our latest research highlights how effective mediation can be in estate disputes, with national research showing that around 87% of mediations result in a change to the original distribution and facilitate settlement.
A trial may become necessary where the parties remain too far apart on core issues such as eligibility, financial need, estate value, family circumstances or the appropriate level of provision.
For many families, the right evidence and the right advice can create a clearer path to resolution. Court remains an important part of the process when agreement cannot be reached, but mediation often gives parties a more controlled, cost-effective and less damaging way forward.
Can you claim if the estate has already been distributed?
Yes, a family provision claim can still be possible after some or all of the estate has been distributed but the position can become more complicated.
Once assets leave the estate, they may be transferred, sold or spent. Money can be spent. Property can be transferred. Estate accounts can be finalised. Those steps make recovery more complex and can limit what is practically available from the estate.
The Court can make orders after distribution in certain circumstances, but the cleaner path is to identify a potential family provision claim before the distribution occurs.
Executors and administrators must also take steps to identify any potential claims against the estate before distributing it, especially during the six-month period after the grant of probate or letters of administration.
For claimants, early legal advice helps preserve options. For executors and administrators, it helps manage the estate properly and reduce the risk of personal liability.
Defending a family provision claim in Western Australia
Family provision claims are brought by claimants, but they are often defended by beneficiaries whose inheritance may be reduced if the claim succeeds.
The executor or administrator play a different yet important role. They must preserve the estate, avoid premature distribution, comply with Court directions, and make sure the estate is managed properly while the claim is resolved. In many cases, their role is neutral and procedural.
Beneficiaries usually have the direct financial interest. They may choose to oppose the claim, negotiate a settlement, or take part in mediation to protect their position.
A family provision claim can be defended on several grounds, including:
- the claimant is not legally entitled to bring the claim;
- adequate provision has already been made;
- the claimant’s financial need is overstated;
- the estate is too limited to justify further provision;
- other beneficiaries have stronger competing needs; or
- the deceased had clear and legitimate reasons for the distribution.
Evidence is critical. A strong defence will generally require more than simply explaining why the beneficiary believes the Will is fair or that the last Will of the deceased must be upheld because it notes their last wishes.
The Court needs evidence addressing the claimant’s circumstances, the value of the estate and the competing needs of the people affected by the claim.
Who pays the legal costs?
Legal costs in a family provision claim depend on how the matter resolves and how the parties conduct themselves.
In a settlement, costs are usually dealt with as part of the agreement.
If the matter proceeds to trial at the Court, the Court decides who pays costs.
The estate can be ordered to pay some costs, but that is not automatic. A claimant can be required to pay their own costs, or even contribute to another party’s costs, especially if the claim is weak or pursued unreasonably.
The same applies to beneficiaries defending a claim. An unreasonable defence can increase cost risk and reduce the value of the estate.
Unreasonable offers, unnecessary steps or a disregard for the process can increase the risk of a costs order against a party.
Costs should be considered early, alongside the strength of the claim, the size of the estate, and the likely benefit of continuing.
For a deeper breakdown, read our guide on the cost of contesting a Will in Western Australia.
Get clear on your position before the estate moves forward
Family provision claims sit at the intersection of law, grief, money and family relationships. They can affect claimants, executors, beneficiaries and the wider family, often at a time when people are already under significant pressure.
The first step is not necessarily to go to Court.
The right advice early can help you understand where you stand, what the law will consider, and what options are available before the estate is distributed or the dispute escalates.
At Solomon Hollett Lawyers, our experienced inheritance lawyers in Perth help clients across Western Australia bring and defend family provision claims with clarity, strategy and care.
You can book a free 15-minute phone call with our team to discuss your situation, understand the ground you may have, and get a clearer sense of the next steps available to you.
FAQs about family provision claims in WA
Can a family provision claim include superannuation?
Sometimes, but not always.
Superannuation doesn’t automatically form part of a deceased’s estate. It depends on how the superannuation death benefit is paid, whether there is a binding death benefit nomination or whether the payment goes to the estate or directly to a dependant.
This is an area where legal advice is important.
Can jointly owned property be included in a family provision claim?
Jointly owned property often passes automatically to the surviving joint owner and may not form part of the estate.
This can affect what assets are available for a family provision claim.
The exact position depends on how the property was owned and the circumstances surrounding the deceased’s interests in any such property.
Can more than one person make a family provision claim?
Yes. More than one eligible person can bring a claim against the same estate.
This often occurs in blended families, disputes involving adult children, or estates where a spouse or de facto partner and children have competing financial needs.
Where multiple claimants exist, the Court may consider running these matters jointly or parallely.
Can a family provision claim be settled without changing the Will itself?
Yes. Many claims settle by agreement without formally rewriting the Will.
The parties may agree to a different distribution of the estate assets, often through a deed of family arrangement. The estate can ultimately be distributed differently from the original position without the Will itself necessarily being rewritten.
Do family provision claims apply if there is no Will?
Yes. A family provision claim can still arise where a person dies without a Will.
In that situation, the estate is distributed under intestacy laws. However, an eligible person can still argue that the distribution does not make adequate provision for them. This often occurs in cases where one of the entitled beneficiaries has a higher need than the others.
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