When someone passes away, questions about their Will and estate can surface quickly.
Maybe you were left out of the Will. Maybe the Will was changed late in life. Or maybe the document itself just doesn’t feel right.
But suspicion, hurt or disappointment aren’t always enough. In Western Australia, there needs to be a recognised legal basis for taking action.
The first step is identifying what kind of issue you’re dealing with, because contesting a Will and challenging the validity of a Will are not the same thing.
First, are you contesting the Will or challenging its validity?
Before looking at the specific grounds for contesting a Will, it helps to separate two different types of dispute.
A family provision claim (contesting a Will) accepts that the Will may be legally valid, but says the deceased person failed to make adequate provision for someone they had a responsibility to provide for.
A validity challenge (challenging a Will) is different. It argues that there’s something legally wrong with the Will itself.
That distinction matters. It shapes the evidence you need, the timing of the claim, and the legal strategy from the start.
Read more: Contesting a Will in Western Australia
Ground 1: Inadequate provision from the estate
Inadequate provision is one of the most common grounds for contesting a Will in Western Australia.
This type of claim does not challenge the validity of the Will, but rather contests whether the Will made proper provision for someone who was eligible to claim from the estate.
This often arises where a spouse, de facto partner, child or other eligible person has been left out entirely, or received less than they reasonably needed. The Court will look at a number of factors including the claimant’s financial position, their relationship with the deceased, the size of the estate, and the needs of other beneficiaries.
Being left out of a Will is only the starting point. If the deceased had a legal or moral responsibility to provide for you, and the Will fails to reflect that responsibility, a family provision claim in Western Australia may be the right ground to explore. The key takeaway here is that while the Will may itself be valid, it is the provision made under the Will that may still be open to review.
Ground 2: Lack of testamentary capacity
A Will can be challenged if the Will-maker lacked testamentary capacity when they made it.
In simple terms, testamentary capacity means the person had the mental ability to understand what they were doing. The traditional test comes from Banks v Goodfellow (1870), which still remains a seminal case reference in Will disputes today.
The Will-maker generally needs to have understood:
- that they were making a Will
- the general nature and value of their assets
- who might reasonably expect to benefit from their estate
- the effect their decisions would have
Capacity concerns often arise where the Will-maker was elderly, unwell, confused, taking strong medication, or affected by dementia, Alzheimer’s disease or cognitive decline.
The key question is usually whether they understood the decision they were making at the time the Will was signed. The evidentiary threshold is high in these disputes, relying on expert medical evidence to demonstrate the Will-maker did not have the requisite capacity as at the time the Will was executed.
Ground 3: Undue influence or coercion
A Will can also be challenged where there are concerns about undue influence on the testator.
Influence on its own isn’t always unlawful. A person can receive advice, listen to family members, or change their mind after difficult conversations. The legal issue is whether pressure, control or coercion overbore the Will-maker’s free will.
This ground often arises where one person:
- controlled access to the Will-maker
- arranged the appointment with the lawyer
- isolated the Will-maker from other family members
- benefited from a sudden or unexpected change
- was heavily involved in giving instructions for the Will
Undue influence can be difficult to prove. The concern needs to be supported by strong evidence, not just a sense or suspicion that someone had too much influence.
Ground 4: Fraud, forgery or deception
Fraud, forgery and deception are less common grounds for challenging a Will, but they’re serious when they arise.
This may involve a forged signature, altered pages, or a Will-maker being tricked into signing a document they didn’t understand. It can also include false information being used to persuade the Will-maker to change their Will.
These concerns are sometimes raised with DIY Wills, online Wills, sudden late-life changes, or situations where there are limited file notes explaining how the Will was prepared. Often Wills prepared at home are not properly witnessed which can cause further concerns about who was present at the time the Will was executed.
These claims need strong evidence. A suspicion that something feels wrong will rarely be enough on its own.
Ground 5: The Will wasn’t properly signed or witnessed
A Will can also be challenged if there are problems with how it was signed or witnessed.
In Western Australia, a valid Will usually needs to be signed by the Will-maker and witnessed by two people who are present at the same time. These formal requirements matter because they help prove the document genuinely reflects the Will-maker’s final wishes.
Problems may arise where:
- the Will wasn’t signed
- one or both witnesses were missing
- the witnesses weren’t present together
- pages appear to have been changed or added
- the document is incomplete or unclear
That said, formalities such as these won’t always rule out a Will from being valid as the Court has the discretion to recognise certain documents as being Wills even when the formal requirements are not met. Where the document appears to embody the testamentary intentions of the deceased, the Court can exercise its discretion where there is persuasive evidence in support.
Which ground applies to your situation?
Most Will disputes start when there is a felt sense that something is wrong. The legal work is turning that concern into the right ground for dispute. Often there may be multiple concerns at play at once, and a legal analysis is then undertaken to determine which is the best ground to explore based on the evidence at hand, and the outcome the claimant seeks to achieve.
A few starting points:
- If the Will was made when the person was very unwell, confused, heavily medicated or showing signs of cognitive decline, the issue may be testamentary capacity.
- If one person was suddenly controlling appointments, paperwork, the Will-maker’s access to family and friends, or decisions about the estate, the issue may be undue influence or coercion.
- If the signature looks wrong, pages appear to have been changed, or the document feels unusual or incomplete, the issue may be fraud, forgery or improper execution.
- If the Will appears valid, but leaves you without proper provision, the issue may be a family provision claim.
The right ground matters. It sets the course for the evidence you need, the time limits that may apply, and the overall strength of the claim.
Know where you stand before the estate moves on
A Will dispute needs more than suspicion. It needs a clear legal ground with strong evidence in support
If you’ve been left out of a Will, received less than expected, or feel concerned about how a Will was made, getting advice early can help you understand where you stand.
At Solomon Hollett Lawyers, our experienced succession lawyers in Perth help clients across Western Australia assess inheritance disputes with clarity and care.
Book a free 15-minute phone call with our team to talk through your situation and understand whether there may be grounds to contest or challenge the Will.
FAQs about grounds for contesting a Will
Can I contest a Will if I’m not in it?
Yes, you may be able to contest a Will in Western Australia if you were left out, but only if you’re eligible and have proper legal grounds. The most common ground is that the Will failed to make adequate provision for you.
What’s the most common ground for contesting a Will?
The most common ground for contesting a Will is inadequate provision. This means the Will may be valid, but an eligible person says they were not properly provided for from the estate.
How long do I have to contest a Will in WA?
For a family provision claim in Western Australia, the usual time limit is six months from the date probate or letters of administration was granted. Other challenges may need to be raised earlier, especially before the estate is distributed.
Do I need a lawyer to contest a Will?
You aren’t legally required to have a lawyer, but Will disputes are technical and evidence-driven. A lawyer can help identify the right ground, assess the strength of the claim, and avoid costly mistakes.
What happens if I don’t have strong grounds?
If there are no strong legal grounds, contesting a Will may expose you to unnecessary cost, delay and emotional strain. Getting early advice can help you understand whether the claim is worth pursuing before taking formal steps.
Dealing with an inheritance dispute, estate administration or probate matter?
Book a free 15 minute phone call with one of our lawyers today.
