Probate, Contested Wills & Family Provision Claims
The Supreme Court of Western Australia deals with all matters relating to Wills and the administration of deceased estates. It does so by making one of the following grants:
- Letters of Administration with the Will annexed
- Letters of Administration
Probate is usually granted to an Executor nominated by a deceased person in their Will.
Letters of Administration with the Will annexed are normally granted to an appropriate person (who will usually be a beneficiary of the deceased’s estate) where a deceased person has not nominated an Executor in their Will, or the nominated Executor is unable or unwilling to apply for a grant of probate.
Letters of Administration are normally granted to an appropriate person (who will usually be a beneficiary of the deceased’s estate) where a deceased person has died without leaving a valid Will.
An application must be made to the Supreme Court to obtain a grant. Banks, financial institutions and government agencies may refuse to allow any dealings with the deceased persons assets until the Supreme Court has made a grant in favour of an Executor or an Administrator.
A Will is invalid if the person making the Will:
- Did not approve its content.
- Lacked the mental capacity to make it.
- Was unduly influenced or pressured into making it in a certain way.
If a Will is invalid, distribution of the deceased persons estate will take place in accordance with the laws of intestacy, as set out in the Administration Act 1903 (WA), unless there is a previous valid Will. This could result in intended beneficiaries receiving nothing and the distribution taking longer and costing more.
If you have reasonable grounds to believe that a Will might not be valid, then a caveat can be filed at the Supreme Court, which will cause the Will to be proved in solemn form probate proceedings. Proof in solemn form means that the Will must be proved in proceedings before the Supreme Court, during which time you will have the opportunity to present evidence.
If a caveat is filed without reasonable grounds, you may be liable for the costs of the solemn form probate proceedings.
Family Provision Claims
The following eligible persons are able to make a claim against a deceased persons estate under the Family Provision Act 1972 (WA), on the basis that a Will or the law relating to intestacy (if there is no Will) does not make proper and adequate provision for them:
- A spouse or De Facto partner.
- A child.
- A parent.
- A grandchild (in limited circumstances).
- A step child (in limited circumstances).
To make a claim you must be able to prove that the Will, or the law relating to intestacy, fails to make adequate provision for your proper maintenance, support, education or advancement in life.
Claims must be made within 6 months of the grant of probate or letters of administration.