Contesting A Will and Inheritance Claims
For many, the passing of a close family member is a difficult time.
This can be made worse when you discover that your entitlement is being challenged by a family member making an inheritance claim. On the other hand, you may want to dispute a Will as you feel that you have been unfairly left out from the Will or find that you will be receiving less than the amount you had expected to receive from the deceased. You may also wish to dispute a Will as you have doubts about the deceased’s mental capacity at the time the Will was made or have concerns that the deceased had been subjected to undue pressure by another party when making the Will.
If you are considering contesting a Will or an estate where there is no Will, we aim to provide you with clear information about the legal processes and some practical advice to assist you to resolve the inheritance dispute in the most cost effective manner. We also offer advice and representation if you are the executor of the estate or a beneficiary defending your entitlement in an inheritance dispute.
Eric Tan, a director of Robertson Hayles Lawyers is a recommended lawyer in the Doyle’s 2018 listing of leading Western Australian Wills, Estates and Succession Planning Lawyers having been identified by both clients and his peers in the legal fraternity for his exeprtise and abilities iin these areas of the law.
Situations Where an Inheritance Claim May Arise
The following are situations where you can make an inheritance claim and seek provision out of the estate of the deceased:-
- When the deceased left a Will at the time of death –
You may be able to challenge a Will and make a claim if you had been left out of the Will or the deceased had given you less than the amount you feel you are entitled to.
- When the deceased did not leave a Will at the time of death –
If the deceased did not leave a Will, the estate of the deceased will be distributed to the beneficiaries set out in the Administration Act 1903 (WA). You may be able to seek provision out of the estate of the deceased if you are not one of the persons entitled to receive a share under the Administration Act 1903 (WA). You may also be able to seek a higher provision if you feel that your entitlement under the law is too low.
Criteria for Court’s Consideration
In order to make an inheritance claim, you must prove to the Court that the deceased had failed to make adequate provision from the estate for your proper maintenance, support, education or advancement in life. The Court may, at its discretion, on such application order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.
Eligibility to Make an Inheritance Claim
It is important to note that not all family members are entitled to challenge a Will or the estate of the deceased. Pursuant to the Family Provision Act 1972 (WA), the following are “eligible persons” who may make an inheritance claim:-
- a spouse or de facto partner of the deceased person;
- a person who was receiving or entitled to receive maintenance from the deceased as a former spouse or former de facto partner of the deceased;
- a child of the deceased living at the date of the deceased’s death, or born within 10 months after the deceased’s death;
- a grandchild of the deceased: –
- who was maintained by the deceased immediately before the deceased’s death; or
- who, at the date of the deceased’s death, was living and one of whose parents was a child of the deceased who had predeceased the deceased; or
- who was born within 10 months after the deceased’s death and one of whose parents was a child of the deceased who had predeceased the deceased;
- a stepchild of the deceased who was maintained or entitled to be maintained by the deceased immediately before the deceased’s death;
- a stepchild of the deceased, if:-
- the deceased received or was entitled to receive property from the estate of a parent of the stepchild, otherwise than as a creditor of that estate; and
- the value of that property, at the time of the parent’s death, is greater than the prescribed amount which at the current date is $460,000;
- a parent of the deceased.
Time Limits for Making an Inheritance Claim
There are time limits when contesting a Will or an estate of a deceased when there is no Will. Under the Family Provision Act 1972 (WA), the time limit to make a claim is 6 months from the date of the grant of probate or administration. Hence, if you wish to dispute a Will or make an inheritance claim, you must seek legal advice from an Inheritance Lawyer immediately following the deceased’s death.
Advice and Court Representation
At Robertson Hayles Lawyers, we have many years of experience as Inheritance Lawyers providing advice and Court representation in the following areas:
- Your entitlement to a share of the estate of the deceased
- The evidence you are required to produce when contesting a Will
- Making applications in the Supreme Court to challenge a Will or seek a provision out of the estate of the deceased where there is no Will
- Defending a beneficiary’s entitlement in relation to inheritance disputes
- Acting for the executor of a Will or the administrator of an estate that is being challenged
- Preparing Deeds of Family Arrangement to record changes agreed upon by the beneficiaries to the manner the estate is to be distributed under the Will or inheritance laws
If you wish to challenge a Will or have any query relating to inheritance claims, call Robertson Hayles Lawyers at (08) 9325 1700 today to arrange an appointment with an experienced Inheritance Lawyer.