Key Takeaways
- Contesting a Will in Western Australia usually means a family provision claim, but some disputes are really challenges to the validity of the Will.
- Only certain people can contest a Will in WA, and eligibility doesn’t guarantee success.
- For family provision claims, the main time limit is usually 6 months from grant of probate or letters of administration.
- Many Will disputes resolve through negotiation or mediation, but some proceed to the Supreme Court of Western Australia.
When a loved one passes away, the last thing most people expect is to be pulled into a dispute about the Will. But for many families in Western Australia, that’s exactly what happens. Someone is left out. Someone receives far less than expected. Or there are troubling questions about how the Will was made in the first place.
Contesting a Will can mean one of two very different things, and that distinction matters. The legal pathway, the evidence required, the timing, and the likely outcome can all look very different depending on the type of claim involved.
In this guide, we explain how contesting a Will in Western Australia works, who may be eligible to bring a claim, when the process usually begins, the time limits that apply, and what to expect if the matter ends up before the Supreme Court of Western Australia.
What does contesting a Will mean in Western Australia?
Contesting a Will means taking legal steps to dispute the outcome of a deceased person’s estate. In Western Australia, people often use the phrase broadly, and it’s commonly confused with challenging a Will. But they’re not quite the same thing.
Strictly speaking, contesting a Will usually refers to a claim that the Will, or the distribution of the estate, failed to make adequate provision for an eligible person. Challenging a Will, by contrast, usually refers to arguing that the Will itself is not legally valid.
That distinction matters because the legal basis of the claim, the evidence needed, the timing, and the court process can all be very different depending on which path applies.
Family provision claim
Strictly speaking, this is the most common form of contesting a Will in Western Australia. A family provision claim is made under the Family Provision Act 1972 (WA). This type of claim doesn’t say the Will is invalid. Instead, it says that an eligible person wasn’t left adequate provision from the deceased estate for their proper maintenance, support, education or advancement in life. A family provision claim is made after a grant of probate or letters of administration are obtained.
In other words, the Will may be legally valid, but the result may still be open to challenge. These claims are commonly brought where a spouse, de facto partner, child, or other eligible person has been left out of the Will entirely, or received less than they say they should have.
In real life, people often start seeking advice when they discover they’ve been left out of a Will, received far less than expected, or learn that the estate is about to be distributed. In many cases, the first practical step is simply getting a copy of the Will and understanding what it says. You can learn more about accessing a deceased person’s Will in Western Australia if you’re unsure where to start.
Challenge to the validity of the Will
A validity challenge is different. It focuses on whether the Will itself should be recognised as legally valid at all. In Western Australia, these disputes usually arise under the Wills Act 1970 (WA) and through probate procedures connected with the Administration Act 1903 (WA). A challenge to the validity of the Will is usually made before a grant of probate or letters of administration is obtained.
The issue may be whether the deceased person had the necessary mental capacity (also known as testamentary capacity), whether they were pressured or unduly influenced, whether there was fraud, or whether the Will was properly signed and witnessed.
Put simply, a family provision claim says the Will may be valid, but it failed to make proper provision. A validity challenge says the Will should not stand in the first place. If you are unsure whether those concerns are enough to justify a challenge, it may help to understand what can make a Will invalid.
Who can contest a Will in Western Australia?
In Western Australia, not every family member can contest a Will simply because they feel the outcome was unfair. For a family provision claim, eligibility is limited by the Family Provision Act 1972 (WA). The people who may apply include:
- a spouse or de facto partner
- a former spouse or former de facto partner who was receiving or entitled to receive maintenance from the deceased person
- a child of the deceased
- certain grandchildren
- certain stepchildren
- a parent of the deceased
That sounds straightforward, but it often isn’t. Some categories are much narrower than people expect.
For example, a stepchild doesn’t automatically qualify. In WA, stepchildren can only apply in specific circumstances, including where they were being maintained by the deceased immediately before death, or where the deceased received or was entitled to receive property from the estate of the stepchild’s parent above the prescribed threshold. Grandchildren also only qualify in limited cases, such as where they were being maintained by the deceased, or where their parent, who was the deceased’s child, died before the deceased.
Just as importantly, being eligible to apply doesn’t mean a person will automatically succeed. The Supreme Court of Western Australia still has to decide whether adequate provision was made, having regard to the claimant’s circumstances, the size of the deceased estate, and the competing position of other beneficiaries. Family members should never assume they qualify, or assume that qualifying means they will receive something.
A validity challenge is different again. In those cases, the right to bring a challenge usually depends less on the family provision categories and more on whether the person has a sufficient interest in the estate, such as being a beneficiary under the current Will, an earlier Will, or on intestacy.
When can a Will be contested?
A Will can only be contested after the deceased person has died. In practical terms, the dispute usually begins once the deceased estate is in motion and the legal process of administering the estate has started. But the timing can look different depending on the type of claim involved.
For example, a validity challenge can arise where concerns emerge before probate is granted, particularly where there are suspicious circumstances surrounding the Will, concerns about pressure or undue influence, fraud, or doubts about the deceased person’s mental capacity.
In those cases, steps may need to be taken early to stop probate progressing until the issue is properly investigated. The key point is that, whether the issue is provision or validity, timing matters. The earlier the legal position is assessed, the better the chance of protecting your rights before the estate moves too far ahead.
On the other hand, for a family provision claim, the key practical trigger is often the grant of probate or, if there is no valid Will, letters of administration. That is usually the point at which the Executor or administrator is formally recognised as having authority to deal with the estate. It’s also the point from which the main time limit for bringing a claim will usually run.
Time limits for contesting a Will in Western Australia
Time limits are one of the most important parts of any Will dispute in Western Australia. If you miss the relevant deadline, you may lose the right to bring a claim altogether, or face significant extra difficulty in trying to proceed. That is why it’s so important to seek legal advice early, especially once a grant of probate or letters of administration have been issued.
Family provision claims
For a family provision claim, the main time limit is usually 6 months from the grant of probate or, if there is no Will, 6 months from the grant of letters of administration. These claims are brought in the Supreme Court of Western Australia, and the six-month period is treated seriously.
Although the Court can allow a late application in limited circumstances, that should never be relied on. Extensions aren’t automatic, and the longer a person waits, the more difficult the position can become.
Read more: How long does a Family Provision Claim take?
Challenges to the validity of the Will
These matters don’t usually follow the same six-month family provision timetable. Instead, urgent action is often needed before probate is granted, or while the probate application is still on foot.
That’s especially so where there are concerns about mental capacity, undue influence, fraud, forgery, or suspicious circumstances surrounding the making of the Will. If the estate moves ahead and probate is granted without opposition, the practical position can become much harder to manage.
Our biggest recommendation in this circumstance is to act early. Once a deceased estate has been distributed, the legal and practical difficulties usually increase.
The process of contesting a Will in WA
The process of contesting a Will in Western Australia will depend on the type of claim involved, but most matters follow a broadly similar path. The first step is working out whether there is a viable claim at all. From there, the focus shifts to evidence, procedure, and whether the dispute can be resolved before trial. In many cases, it can.
1. Get legal advice and assess eligibility
The first step is to seek legal advice as early as possible. This is where eligibility, time limits, and the overall strength of the claim are assessed. For a family provision claim, that usually means looking closely at the claimant’s relationship with the deceased person, whether they fall within an eligible category under the Family Provision Act 1972 (WA), and whether they may have been left without adequate provision.
2. Identify the type of claim
It’s important to identify the legal pathway early. A family provision claim focuses on whether proper provision was made from the deceased estate. A validity challenge focuses on whether the Will itself should stand. That distinction shapes everything that follows, including the evidence required, the timing of the claim, and the court process.
3. Notify the Executor and gather evidence
Once the claim has been assessed, the next step is usually to notify the Executor or those acting in the estate. Evidence then needs to be gathered. If you are unsure what documents, records or witness material may actually support your case, it’s worth understanding what evidence you need to contest a Will in WA.
In a validity challenge, the evidence may include medical records, witness statements, earlier Wills, and material relevant to mental capacity, pressure, undue influence, fraud, or execution issues.
In a family provision claim, this often includes evidence of the claimant’s financial need, assets and liabilities, income and expenses, relationship with the deceased, and why the provision made was not adequate.
4. File in the Supreme Court of Western Australia if needed
If the matter doesn’t resolve early, proceedings may need to be commenced in the Supreme Court of Western Australia.
In a family provision claim, that commonly involves filing an Originating Summons supported by affidavit evidence. In other Will disputes, including some validity-related proceedings, the originating process may differ and can include a Writ of Summons, depending on the nature of the case. The affidavit material will usually set out the claimant’s standing (or right to bring a challenge), the provision sought or issue raised, the basis of the claim, and the evidence relied on. Other beneficiaries whose inheritance may be affected are usually brought into the proceeding as well.
5. Case management, negotiation and mediation
Once proceedings are on foot, the matter is usually listed for a procedural directions hearing to move it toward resolution. The Court generally encourages early negotiation and mediation, often before the matter gets anywhere near a trial. Mediation is a major resolution point in inheritance disputes and gives the parties an opportunity to reach a practical outcome in a more efficient and less adversarial setting. Most contested Will matters resolve at this stage.
6. Go to trial if the matter does not settle
If the matter doesn’t settle, it may proceed to trial, where a judge will decide the outcome based on the evidence. Trials can be expensive, time-consuming, and emotionally draining, which is one reason most matters resolve before they get that far. Even so, settlement can still happen at any stage, including shortly before a final hearing.
What does the court consider?
In a family provision claim, the Court doesn’t start from the position that every child should receive an equal share, or that being left out of a Will automatically means the Will was unfair. The question is whether the deceased person made adequate provision for the claimant’s proper maintenance, support, education or advancement in life.
To answer that, the Court looks at a range of factors. These usually include:
- the claimant’s relationship with the deceased person
- their current financial position and level of need
- the size and nature of the estate (A large estate may allow more room for adjustment than a modest one, but every case turns on its own facts).
The Court will also consider the position of other beneficiaries and any other eligible claimants. In other words, it weighs the claimant’s circumstances against the competing needs of other beneficiaries and the overall structure of the deceased estate.
This is why not every eligible person succeeds, and why not every disappointed family member has a strong claim. The Court’s task is not simply to rewrite the Will because someone feels hurt or overlooked. It is to decide whether, in all the circumstances, adequate provision was made and, if not, whether further provision should be ordered.
Legal costs, risks and possible outcomes
Contesting a Will in Western Australia comes with real legal and practical risk. There’s no guaranteed result, even where a person is eligible to bring a claim. The strength of the claim, the evidence, the size of the estate, and the position of other beneficiaries can all affect the outcome. If you want a clearer sense of where claims can fall short, we recommend reading about unsuccessful cases of contesting a Will and what doesn’t work in court.
It’s also important to understand the costs position early. In some cases, legal fees may be paid out of the estate, but that doesn’t happen automatically and should never be assumed. Weak claims, or claims that fail, can expose a party to costs order requiring the party to pay the costs of the winning party.
Possible outcomes include:
- a negotiated settlement before trial
- a lump sum payment from the estate
- the transfer of a particular asset
- a court-ordered redistribution of part of the estate
- no change at all, if the claim does not succeed
Mediation is often an important part of this process. It can reduce legal costs, delay, and family conflict, and many estate disputes resolve there rather than going all the way to trial.
Common misconceptions about contesting a Will
There are a lot of misconceptions about contesting a Will in Western Australia, and they can cause people to make poor decisions or wait too long to act.
“I’m a child, so I automatically have a claim”
Not necessarily. Being a child of the deceased may make a person eligible to apply, but eligibility is only the starting point. The Court still has to decide whether adequate provision was made in the circumstances. That’s also why it’s worth understanding can you disinherit a child in Western Australia, because exclusion doesn’t always end the matter.
“If the Will is valid, it cannot be contested”
Wrong. A Will may be legally valid, but still open to a family provision claim if an eligible person was not properly provided for.
“A small gift prevents a claim”
It does not. Leaving someone a token amount does not stop the Court from considering whether proper provision was made from the estate.
“I can wait and deal with it later”
Usually not. Strict time limits apply, and delay can seriously damage a claim, especially once the estate has been distributed.
“Going to court is inevitable”
Not at all. Many Will disputes resolve through negotiation or mediation well before a final hearing.
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Don’t wait to understand where you stand
Contesting a Will in Western Australia can be legally complex, emotionally draining, and highly time-sensitive. If you have been left out of a Will, received less than you expected, or have concerns about how the Will was made, getting clear advice early can make a real difference. The right first step is understanding whether you may have a valid legal claim, what time limits apply, and what options are realistically open to you.
At Solomon Hollett Lawyers, our experienced Will contest lawyers help clients across Western Australia assess inheritance disputes with clarity and care. We offer a free 15-minute call to talk through the basics of your situation, whether your claim may be legally viable, and where to go from there.
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