Contesting a Will in Western Australia: How It Works

Someone close to you has died, and the will does not reflect what you expected — or what you believe is fair. Before assuming nothing can be done, it is worth understanding the two distinct legal mechanisms that exist in Western Australia for challenging or altering the outcome of an estate.

They are fundamentally different in what they challenge and what they seek to achieve.

The Two Types of Challenge

Contesting the validity of the will means arguing that the will itself should not be admitted to probate. Common grounds include:

• The deceased lacked testamentary capacity when the will was signed (typically due to dementia or serious illness)
• The deceased was subject to undue influence or coercion
• The will was not properly executed — missing witness signatures, or signed under duress
• The will is a forgery

These challenges are serious litigation and require evidence. They are pursued in the Supreme Court of Western Australia as part of, or as a challenge to, the probate application. If successful, the will is set aside and the estate is distributed either under an earlier valid will or, if none exists, according to the intestacy rules in the Administration Act 1903 (WA).

A family provision claim is different. It does not dispute whether the will is valid. It accepts the will as genuine but argues that the deceased failed to make adequate provision for an eligible person who was dependent on them or had a legitimate expectation of support.

Family Provision Claims in WA

Family provision law in Western Australia operates under the Inheritance (Family and Dependants Provision) Act 1972 (WA). An eligible applicant must be someone who was maintained or entitled to be maintained by the deceased.

Typically eligible people include:

• A surviving spouse or de facto partner (de facto partners must demonstrate at least two years of continuous cohabitation)
• Children of the deceased, including adult children and stepchildren in certain circumstances
• Former spouses who were receiving maintenance from the deceased

Being related to the deceased is not enough on its own. The court looks at whether the deceased had a moral obligation to provide for that person, and whether the will (or the intestacy outcome) falls short of what is adequate in the circumstances.

The court considers factors including the nature and duration of the relationship, the applicant's financial position and needs, the size and nature of the estate, the competing claims of other beneficiaries, and any contributions the applicant made to the estate or to the deceased's welfare.

The Six-Month Deadline — and Why It Matters

A family provision claim must generally be initiated within six months of the Grant of Probate or Letters of Administration being issued. This is not a soft guideline. The Supreme Court can grant an extension at its discretion, but these extensions are not freely given and require persuasive reasons. Missing the deadline significantly weakens your position.

The timeline has a practical consequence for executors: do not distribute the estate in full within the first six months of receiving the grant. If an eligible claimant makes a successful application after distribution has occurred, the executor can be held personally liable for any assets that can no longer be recovered from beneficiaries.

What Executors Should Do When a Claim Is Threatened

If you are an executor and someone signals an intention to contest the will or bring a family provision claim, the prudent response is to:

1. Not distribute the estate until the matter is resolved or the six-month window has closed without a filed claim
2. Seek legal advice before making any distributions that could be challenged
3. Ensure you have published a Section 63 Notice in the WA Government Gazette to crystallise all creditor and claimant claims before distributing

A threatened claim is not the same as a filed claim. Many disputes resolve through negotiation before reaching court. But an executor who distributes assets in the face of a clear dispute does so at significant personal risk.

The Executor's Position When the Will Is Challenged

If probate has already been granted and the will is subsequently challenged, the executor continues to act in that capacity while the matter is before the court. The executor has a duty to defend the estate's position — not to advocate for any particular beneficiary. In practice this usually means legal representation is required, with costs met from the estate.

Getting the Full Picture

Understanding the mechanics of these claims before a death — not during or after — helps families set realistic expectations. Executors managing estates where family dynamics are fraught, where a de facto relationship is disputed, or where adult children have been excluded from a will benefit most from a structured process that flags these risks early.

The WA Estate Settlement Guide covers executor duties around disputed estates, the six-month distribution hold, family provision timelines, and the Section 63 creditor notice process that protects executors from personal liability.

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