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06 July 2022

Who Pays to Contest a Will?

wills and testament

The death of a family member or close friend is never easy, and wrapping up the estate can be an enormous task that requires time, diligence and the ability to carefully navigate legal issues that may arise. One big question we get asked a lot is: who pays to contest a will and what are the steps to contesting a will?

You won’t be surprised to learn that contesting a will can be a stressful and complex process that can have unpredictable outcomes. When we say contesting a will, we are referring to the process that most people would think of – contesting who gets what from the estate. There are of course other reasons to contest a will, such as if you think the will maker lacked testamentary capacity at the time the will was made. No matter what the case, the process can incur some serious legal costs.

Here at Solomon Hollett Lawyers, we strive to ensure that our clients benefit from our decades of experience in estate law by providing them with all of their options, and practical and commercial solutions to navigate their legal matters. 

Who Can Contest a Will?

Not everyone can contest a will. In Western Australia, you can only contest a will if you are an eligible person; and believe you have been left without adequate and proper provision in the will. 

According to section 7 of the Family Provision Act 1972 (WA), an eligible person is one of the following:

  • A married partner or de facto partner;
  • Someone receiving or entitled to receive maintenance from the recently deceased;
  • A child of the deceased; or, under certain circumstances
  • a grandchild, stepchild or a parent of the deceased.

The Supreme Court looks at these types of claims by breaking them down into a two-limb test. First, the Court will decide if whatever was left to the claimant by the deceased person (if anything) was proper and adequate provision. Secondly, the Court (if satisfied that the provision was inadequate) will exercise its discretion to alter the distribution of the estate to ensure that the provision is proper and adequate for the claimant’s needs (having regard to a whole raft of factors, including the financial position of the claimant and other beneficiaries, the size of the estate and the relationship between the deceased person and the claimant, among other things).

If you feel like you have not been adequately provided for in a final will or testament, make sure you contact our legal team today. 

What are the Steps to Contesting a Will?

Contesting a will can be difficult for several reasons, one of those being the timing. If you plan to contest a will, then you’ll have 6 months from the date of the grant of probate to do so. Once a grant of probate is given to the executor, the will is authorised to be carried out given that there are no questions surrounding the validity.

If you want to contest a will in Western Australia after the initial 6 months have elapsed, you will need special permission from the Court to do so, which is unlikely to be granted unless there is a compelling reason that an application was not commenced during the 6 month period.

If you are acting as an executor of will, it is best practice not to distribute the estate until after the 6 month period has elapsed, so that you know there aren’t any claims waiting in the wings. 

If you’re worried about the timing of your claim, it’s good to call on a lawyer to ensure the best chances of success.

Who Pays to Contest a Will?

By now you’re probably wondering who pays for all this? From the court fees to the legal fees, family provision cases can get quite expensive for claimants and defendants alike. 

You may be surprised to learn that according to the Family Provision Act 1972 (WA), the Judge has the final say in who ends up footing the bill for the legal costs incurred – whether each party pays their own costs, or the costs come out of the estate. However, while this may invite confusion, it’s common for the court to award the claimant their legal costs, provided they are successful in their claim. Judges will take care to examine whether the claimant has been disadvantaged due to the deceased’s failure to adequately provide for them in the will. 

Usually, the costs associated with the executor’s work are covered by the deceased person’s estate.

How do I Know if my Claim will be Successful?

Remember: every case is different. 

This cannot be stated enough. Each and every case has its own facts, particularities, and actors. There is no definitive rule that stipulates who gets what or who pays what. A Judge will consider multiple factors that impact the lives of those within the will, specifically whether the claimant has been adequately provided for in the will. This is a growing and fast-moving area of law, and given that modern family structures are becoming more dynamic, this leaves room for evolving jurisprudence.

This is why it is essential that you have expert legal representation backing you up throughout the process. Without effective legal advice, it’s easy to get lost in the legal system – putting your claim at risk. 

Invest in Proper Estate Planning

When it comes to family estates, forward planning and security are everyone’s best friends. Here at Solomon Hollett Lawyers, our experience tells us that getting ahead of the game cannot be underestimated. 

That’s why our dedicated team of Perth lawyers are ready to apply extensive experience to leverage your claim to the best of our abilities. We act both on behalf of anyone who feels they have been left out of a will or testament as well as executors and beneficiaries who want to defend against predatory attacks. 

Whether you’ve been completely or partially excluded, worried about the timeline, costs or just need answers now, get in contact with our team and take advantage of our free 15-minute consultation. We’re here to help you keep what’s rightfully yours. Call us today on 08 6244 0985.