Probate in Western Australia – Contentious vs Non-Contentious

As family make-ups and asset structures become more and more complicated, we are seeing a big rise in disputes not just over who gets what, but who should be in control of a deceased person’s estate.

What is Probate?

When someone passes away and they leave a valid Will, their Will appoints an Executor. The Executor is the person who takes control of the deceased’s assets, pays their debts and distributes the estate according to the terms of the Will and according to law.

In order to carry out these tasks, the executor must make an application to the Supreme Court of Western Australia for a Grant of Probate. The Grant of Probate is an official Court document that attaches the Will and gives the Executor the authority to deal with the Deceased’s estate.

Without the Grant of Probate, the Executor won’t be able to deal with bank accounts, superannuation interests or real estate.

How does an Executor get a Grant of Probate?

When there is no dispute as to who the Executor of a Will is, the Executor makes an application to the Supreme Court, asking the Court to issue a Grant of Probate in the name of the Executor. These applications are made in the non-contentious Probate jurisdiction of the Supreme Court and are governed primarily by the Non-Contentious Probate Rules (WA) 1967 (‘the Rules’).

Similarly, where there is no Will (and no dispute as to who should be appointed as the Administrator of the estate), the proposed Administrator would make an application pursuant to the Rules and the Administration Act (WA) 1903 asking the Court to issue a Grant of Letters of Administration in the name of the proposed Administrator.

The Rules set out what information needs to be provided to the Court in making these applications in the non-contentious Probate jurisdiction, including but not limited to:

• Date of birth of the deceased;
• Details of death, including date and place;
• Relationship details of the Deceased (i.e. single, married, widowed etc); and
• Details of the assets left by the Deceased in Western Australia.

Applications in the non-contentious Probate jurisdiction are determined by a Registrar of the Court ‘on the papers’, meaning the Registrar considers the material filed with the Court and decides to issue a Grant or request further information. There are generally no Court appearances required.

But what happens when there is a dispute over who is the correct executor, or who should be the administrator?

The Contentious Probate Jurisdiction

When there are two different parties contending that they should be the Executor or Administrator of the estate, or allegations that a Will is invalid, it cannot be said that the matter is ‘non-contentious’—there is clearly a contention between the two parties wanting to be appointed.

This means that for the Court to decide who should be appointed, contentious court proceedings must be commenced. The most common form of contentious court proceedings in estate matters would be ‘solemn form’ proceedings, which generally come about when one party asserts that a Will isn’t valid for some reason.

The difference between contentious proceedings and an application in the non-contentious jurisdiction include, but are not limited to the following:

Grants in Solemn Form vs Common Form Grant

In order for the Court to make a Grant in solemn form, the Court must be satisfied of the formal validity of the Will, to the civil standard. This means that the Court must be satisfied, on the balance of probabilities and based on all of the evidence put forward, that it is more probable than not that the Will is valid.

What evidence the Court takes into consideration in deciding this will depend on the facts of the case and the nature of the dispute between the relevant parties.

The primary difference between a Grant in solemn form and a common form Grant is that a common form Grant is revocable, and a Grant in solemn form is not (with limited exceptions)1. It makes sense then, that the burden of proof is higher for a Grant in solemn form to be made.

Should I make a non-contentious or contentious application?

If there are no disputes as to who the Executor or Administrator of the estate is, an application for a common form Grant should be made in the non-contentious Probate jurisdiction of the Supreme Court.

If any of the following circumstances exist, it may be more appropriate for an application to be made in the contentious jurisdiction of the Supreme Court (and note that this is not an exhaustive list):

1. There are multiple Wills, and disagreement about which Will is the last valid Will of the Deceased;
2. There are concerns or allegations that the Deceased lacked the requisite testamentary capacity when the Will was made, or was forced to make the Will due to undue influence or pressure;
3. The original Will cannot be located, and it is thought that the Deceased revoked the Will by destroying it;
4. An appointed Executor is not up to doing the job, but refuses to renounce their position; or
5. There are multiple persons entitled to be appointed as the Administrator and cannot agree who should be appointed.

It is not uncommon for an application for a common form Grant to be filed with the Court, which is then superseded by an application in the contentious jurisdiction (usually from another party). Due to the very nature of the contentious Probate jurisdiction and the orders that flow from those proceedings, the contentious proceedings will take precedence over the non-contentious application.

If you have concerns about who is in control of an estate, or in relation to a Will that you anticipate will be propounded, you should take legal advice sooner rather than later – it is always a more complicated job to unravel the making of a Grant that perhaps should not have been made in the first place.

Navigating Probate with confidence

Probate matters can quickly become complex, especially when disputes arise. Whether you’re handling a straightforward application or facing a contentious challenge, having expert legal guidance ensures the estate is managed properly.

At Solomon Hollett Lawyers, we’re here to support you through all aspects of Probate and estate planning. If you’re looking for help with Probate, contesting a Will, or need to draft an estate plan, contact us today for a free 15-minute consultation. Let us help you navigate this process smoothly and protect your interests.

[1] Wheatley v Edgar [2003] WASC 118 [18].