Losing someone close is hard enough. Discovering that their will leaves you out, gives you far less than you expected, or looks nothing like what they told you they wanted can make that grief much heavier. In Western Australia, the law does give certain people a way to challenge a will, but the process has strict rules and even stricter deadlines.
Most will disputes in WA start with a feeling that something isn’t fair or isn’t right. Perhaps a partner of many years was left with nothing, an adult child who cared for an elderly parent was overlooked, or a new will was signed shortly before death when the will-maker was unwell. These situations are more common than many families realise, particularly in blended families and in estates that include property, a family business or superannuation.
If you’re thinking about contesting a will, speaking with an experienced wills lawyer early is one of the most useful things you can do. A lawyer who works in WA estate law can tell you quickly whether you’re eligible to make a claim, how strong it is likely to be, and how much time you have left. The guide below walks through how the process generally works in Perth and across Western Australia, so you know what to expect before that first conversation.
Two Ways to Contest a Will in WA
People often use “contesting a will” to describe two quite different types of claim. Knowing which one applies to you shapes everything that follows.
1. A family provision claim. This is the most common type of will dispute in WA. It doesn’t argue that the will is invalid. Instead, it asks the Supreme Court of Western Australia to order that you receive more from the estate because the will didn’t make adequate provision for your proper maintenance, support, education or advancement in life. These claims are made under the Family Provision Act 1972 (WA).
2. A challenge to the will’s validity. This argues that the will itself shouldn’t be accepted at all, or that an earlier will should apply instead. Common grounds include:
- Lack of testamentary capacity – the will-maker didn’t understand what they were signing, often because of dementia, illness or medication.
- Undue influence – someone pressured or coerced the will-maker into making the will.
- Lack of knowledge and approval – the will-maker didn’t truly know and approve of what the will said.
- Improper execution – the will wasn’t signed and witnessed as required by the Wills Act 1970 (WA).
- Fraud or forgery – the document isn’t genuine.
Some disputes involve both types of claim, so it’s worth having the facts assessed against each.
Step-by-Step: How to Contest a Will in Western Australia
Step 1: Check Whether You’re Eligible
Only certain people can bring a family provision claim in WA. Depending on the circumstances, eligible people can include:
- the deceased’s spouse or de facto partner at the time of death
- a former spouse or de facto partner who was receiving, or entitled to receive, maintenance from the deceased
- children of the deceased
- grandchildren, in some circumstances (for example, if their parent died before the deceased, or the deceased was maintaining them)
- stepchildren, in some circumstances
- parents of the deceased, in some circumstances
Being eligible doesn’t guarantee success. The Court will look at your financial position, your relationship with the deceased, the size of the estate, and the needs of everyone else with a claim on it.
A validity challenge works differently. It’s usually brought by someone who would benefit if the will were set aside, such as a beneficiary under an earlier will or someone who would inherit under the intestacy rules.
Step 2: Act Quickly – The Six-Month Time Limit
This is the step people most often get wrong. In WA, a family provision claim must generally be filed within six months of the grant of probate or letters of administration. The clock starts from the grant, not from the date of death, and a grant can be issued sooner than families expect.
The Court can allow a late claim, but this is not automatic. Applicants need to explain the delay, and the WA Supreme Court has treated the time limit as a substantive requirement rather than a technicality. Once an estate has been distributed, a late claim becomes even harder.
Step 3: Consider Lodging a Caveat
If you believe the will is invalid, you can lodge a caveat with the Probate Office of the Supreme Court of WA. A caveat stops a grant of probate being made without notice to you, which gives you time to investigate. It’s a temporary measure, so it should be followed by proper legal steps rather than left to sit.
Step 4: Gather Your Evidence
Strong evidence makes a real difference. Depending on the type of claim, this may include:
- a copy of the will and any earlier wills
- details of the estate’s assets and liabilities
- evidence of your own finances, health, housing and needs
- records showing your relationship with the deceased, including any care or financial support you provided
- medical records or witness accounts about the will-maker’s mental state, for validity challenges
Step 5: Try to Negotiate
Many disputes settle before reaching court. Your lawyer will usually write to the executor setting out your claim and inviting a resolution. Early, sensible negotiation can save the estate, and everyone involved, a significant amount of money and stress.
Step 6: File Your Application in the Supreme Court
If negotiation doesn’t work, the claim is commenced in the Supreme Court of Western Australia in Perth. You’ll typically file supporting affidavits that set out your circumstances and why the will failed to provide for you properly. The executor and other beneficiaries then have the chance to respond.
Step 7: Attend Mediation
Mediation is a standard part of estate litigation in WA. An independent mediator helps the parties work towards a settlement in a confidential setting. Most family provision claims resolve at or around this stage.
Step 8: Final Hearing
If mediation fails, the matter goes to a hearing before a judge. The Court will decide whether adequate provision was made and, if not, what further provision should be ordered from the estate. In a validity dispute, the Court decides whether the will should be admitted to probate.
Protecting Your Rights in a WA Will Dispute
Contesting a will in Western Australia is rarely simple, and costs are not guaranteed to come out of the estate, so it pays to understand your position before committing. The key points are clear: work out which type of claim you have, confirm you’re eligible, and keep a close eye on that six-month deadline. With the right advice and good evidence, many disputes can be resolved through negotiation or mediation, sparing families the expense and strain of a full trial.
Disclaimer: This article provides general information only about contesting a will in Western Australia and does not constitute legal advice. Every estate dispute depends on its own facts, and the law and court procedures may change. You should obtain independent legal advice about your specific circumstances before taking, or deciding not to take, any action.
