When Is A Claim Worth Pursuing?
Not every disappointment with a Will is a legal claim. In Western Australia, the key question is usually whether an eligible person has been left without adequate provision — not simply whether the Will feels unfair.
A Will does not have to be equal
Estate disputes are often emotional. A person may feel hurt, surprised or overlooked, particularly in blended families, second relationships or where siblings have been treated differently.
That does not always mean the Court will change the Will. A Will does not have to divide an estate equally, and it does not have to meet everyone’s expectations. The issue is whether an eligible person has been left without adequate provision for their proper maintenance, support, education or advancement in life.
Who can bring a claim?
Family provision claims in WA are generally brought under the Family Provision Act 1972 (WA). Eligible applicants may include a spouse or de facto partner, a child, certain stepchildren, certain grandchildren, parents, and in limited circumstances a former spouse or de facto partner.
Eligibility is only the starting point. Even if you are eligible to apply, the Court will still need to consider whether further provision should be made in all the circumstances.
What does the Court consider?
The Court looks at the matter as a whole. This may include the size and nature of the estate, your financial position and needs, your relationship with the deceased, the needs of other beneficiaries, any provision already made for you, and the deceased’s reasons for making the Will in the way they did.
Many disputes come down to expectations not matching the legal position. For example, an adult child may feel an equal share is fair, but the Court may focus on financial need, competing obligations and the overall circumstances of the estate.
Time limits matter
Strict time limits apply. In most cases, a family provision claim in WA must be made within six months from the grant of probate, or letters of administration if there is no Will.
Extensions may be possible, but they should not be relied on. Delay can also make a claim harder to resolve, especially if the estate has already been distributed.
Before taking action
Before contesting a Will, it is worth considering whether the claim is legally and commercially worthwhile. Estate disputes can be stressful, expensive and damaging to family relationships.
Early advice can help you understand whether you are eligible, whether the provision made for you may be inadequate, and whether there is a sensible way to resolve the dispute before court proceedings become necessary.
If you are concerned about a Will, or you have received notice of a claim against an estate, our team can help you understand your options and the next practical steps.
