If you are thinking about contesting a Will in Western Australia, evidence is the key to your case. The Court does not act on suspicion or emotion. You will need solid and well-prepared evidence to prove your claim.
This might include medical reports, financial records, witness statements, or documents showing your connection to the person who has passed away. What matters most is how clearly that evidence supports your claim and the manner in which it is presented.
In this guide, we break down what evidence may be useful in different types of claims, how to gather it, and why the timing matters. When it comes to inheritance disputes, it’s not just about what you believe, rather it’s about what you can prove.
Who can contest a Will in WA?
Under the Family Provision Act 1972 (WA), only certain persons can make a claim for further and adequate provision from an estate. These include:
- A spouse or de facto partner of the deceased;
- A child (including adult children and adopted children);
- A grandchild, in limited circumstances;
- A stepchild, in limited circumstances;
- A former spouse or partner, if they were financially dependent on the deceased;
- A parent of the deceased.
Each case depends on its own facts, and some categories (such as stepchildren or former partners) involve more complex legal tests. If you’re unsure whether you’re eligible, it is worth getting legal advice early from an estate lawyer.
Grounds for contesting a Will (and how evidence supports them)
Feeling that a Will is “unfair” or not what you thought it would be is not enough. The law requires that you prove a specific ground and your evidence should substantiate the claim.
The most common reasons people contest a Will include:
- Lack of testamentary capacity – the Will-maker who made the Will did not understand what they were signing;
- Undue influence or coercion – someone else exerted control over the Will-maker to make certain decisions or choices;
- Fraud or forgery – the Will is not genuine or was created through deception;
- Improper execution – the Will does not meet the formal requirements under the Wills Act 1970 (WA);
- Inadequate provision – you were left out of the Will or left too little, given your relationship with the deceased and your financial needs.
Each of these requires a different type of evidence, some of which are outlined below.
What proves your claim?
The type of evidence you need depends entirely on the basis of your claim. Below is a breakdown of the common legal grounds for contesting a Will in Western Australia, and the key evidence usually required for each.
Lack of Testamentary Capacity
When someone makes a Will, they must understand the implications of their decisions. This includes knowing the extent of their assets and recognising who might have a claim to their estate. Testamentary capacity differs from the usual mental capacity, though the lines are often blurred.
Useful evidence includes:
- Medical records around the time the Will was made;
- Reports from treating doctors or specialists (e.g. dementia or cognitive assessments);
- Witness statements from those who observed confusion or memory loss;
- Previous Wills that show sudden, unexplained changes.
Such documents paint a picture that the Will-maker did not fully grasp the nature and extent of their decisions, but this evidence is not in and of itself sufficient all the time.
Undue Influence of Coercion
These claims suggest the Will-maker was pressured or manipulated into making decisions they wouldn’t have made freely.
Useful evidence includes:
- Emails, texts or letters showing controlling or coercive behaviour;
- Evidence of isolation from family or friends;
- Sudden or unexpected changes to the Will benefiting one person;
- Witness statements from those who observed changes in the Will-maker’s behaviour or relationships
Undue influence is rarely a single act but it’s often a pattern. The more you can show that pattern, the stronger your case becomes.
Fraud or Forgery
Alleging that a Will is fake, forged or altered is a serious claim that must be supported by clear and reliable evidence. The Court applies a high threshold when assessing such allegations.
Useful evidence includes:
- Handwriting analysis reports or signature comparisons;
- Conflicting versions of the Will;
- Evidence that a later Will was hidden or destroyed;
- Testimony from people familiar with the Will-maker’s intentions, handwriting or circumstances surrounding the preparation and execution of the Will.
Forgery or alteration of a Will can lead to criminal investigation. Any concerns of this kind should be approached carefully and preferably, with legal guidance.
Improper Execution
In WA, a Will must meet specific legal requirements to be considered a valid Will. If it wasn’t signed or witnessed properly, the Court can declare it invalid and the estate may be distributed in accordance with the laws of intestacy.
Useful evidence includes:
- The original Will for inspection;
- Affidavits from witnesses to the signing;
- Any notes, emails or records about the execution of the Will;
- Evidence that the Will was altered after it was signed, or signed without witnesses being present.
Sometimes, even a technically flawed or non-compliant Will can still be accepted if there is sufficient proof of testamentary intentions. This depends on the evidence that can be presented to suggest the existence of what is then called an informal Will.
Inadequate Provision (Family Provision Claims)
This is the most common ground for contesting a Will. A claimant is required to prove that the deceased did not make adequate provision from their estate for the proper maintenance, support, education or advancement in life of the claimant.
Useful evidence includes:
- Your financial statements (showing your financial needs);
- Details of your relationship with the deceased (including any care or support you gave);
- Medical reports showing health and disability needs;
- Evidence of previous financial support or dependency;
- Whether the deceased was morally obliged to provide for you;
- The size and structure of the estate.
The Court undertakes a balancing act to weigh your financial position, the nature of your relationship, and the size of the estate in deciding what constitutes “adequate”.
How to gather and preserve evidence
The success of your claim often depends to the quality of your evidence and how early you begin collecting it.
Where possible, gather documents and records while they’re still accessible. That might include financial statements, medical reports, text messages, or earlier versions of the Will. If you don’t already have them, your lawyer can help request or subpoena records from banks, hospitals, aged care providers, or anyone else holding relevant information.
Witness statements can also be crucial, especially from people who knew the Will-maker well or were present when the Will was made. These statements may later form part of formal affidavits and used in Court proceedings.
Importantly, do not alter or annotate any documents you find. Preserve originals and take copies. If you believe someone else may destroy or withhold evidence, get legal advice quickly, as the Court can intervene if necessary.
Time limits and urgency: Don’t miss your window
In WA, you have just six months from the date of the Grant of Probate (or Letters of Administration) to file a Family Provision claim. If you miss that deadline, you’ll need the Court’s permission to proceed, and extensions are not always granted.
Timing is critical. Gathering medical records and witness statements early help preserve your position, before the documents are lost or witnesses forget key details.
Acting early in such claims also improves the chances of resolving the dispute through negotiation or mediation before it escalates to a lengthy and expensive trial.
How the court weights evidence (and why it matters)
Not all evidence carries the same weight. The Court will assess how reliable, relevant, and consistent your material is, and whether it genuinely supports your claim.
For instance, medical records from the time the Will was signed, will carry more weight than general statements about the deceased’s health. Financial statements showing clear financial needs are more persuasive than broad claims of hardship. Witnesses who personally observed relevant events are more credible than those attesting to hearsay information.
The Court also considers how your evidence compares with that of the executor or other beneficiaries. In many cases, the strength of your evidence can mean the difference between a matter settling early or going all the way to trial.
What to do next
Contesting a Will in WA is not simple. Success depends not only on your reason for challenging the Will, but also on how effectively your evidence supports the claim.
Our estate litigation lawyers in Perth help clients across Western Australia navigate these disputes with clarity, care and experience. We’ll help you understand where you stand, what evidence you need, and what’s possible.
Book a free 15-minute consultation and get the guidance you need to take the next step with confidence.
