Dispute A Will
Lawyers & Barristers

The Law

A dependant who believes that they did not receive a fair share of the deceased’s property under the will, or the Administration Act 1903 (WA), may apply for provision under the deceased’s estate under s7 of the Family Provisions Act (WA).

Who can contest a will this way?

In accordance with section 7 of the Family Provision Act 1972 (WA), the following individuals may apply for provision from deceased’s estate:

• A person married to the deceased immediately before their death;
• A de facto partner (including same sex de facto) living with the deceased immediately before their death;
• Parent of the deceased;
• A former spouse/ de facto who was receiving/entitled to receive maintenance payments at the time person died;
• A child of the person living at the time of the deceased’s death or child born within 10 months after deceased’s death;
• Grandchild of the deceased- being wholly or partially maintained by the deceased, living at the time of deceased’s death and whose parents are a child of deceased who died before the deceased;
• Stepchild of the deceased (If the deceased died on/after 16 Jan 2013) – who was being maintained wholly/partly or entitled to be maintained wholly/partly by the deceased immediately before death or where the deceased received or entitled to receive property from the estate of a parent of the step child valued at time of parent’s death at more than the amount specified in Family Provision Regulations 2013 (WA).

What would need to be proved?

Where an applicant is challenging a will on the basis that they have not been adequately provided for, they will need to demonstrate the following to the court:

• their relationship to the deceased;
• the reasons they believe they are entitled to a share or larger share of the property; and
• the reasons they believe the will does not provide for them.

A statement made by a deceased person, contained in a written document may be tendered as evidence

Possible outcome

The court will determine whether or not to interfere and the court may seek to refuse an application where it does not want to become involved. Where the court makes an order that an individual shall receive a share or larger share of the deceased’s property, then another beneficiary will now receive a smaller share.

The Law

The executor has an obligation to realise estate assets, pay debts and expenses and distribute the estate within a year of the deceased’s date of death. When a beneficiary believes that an executor or trustee has breached their duties, a number of remedies are available to them.

A beneficiary may seek the following options:

• Passing over of executor- beneficiaries must seek an order that the person nominated as executor be passed over from holding the position. This is only available against an executor before the grant of probate.
• Removal of executor- after the grant of probate but before there is assent and completion of administration of the estate
• Removal of trustee- after the administration of an estate has been completed and a trustee is administering a trust created by a will

Trustee should not be removed on basis of mere hostility between the trustee and beneficiaries

Who can contest a will this way?

The plaintiff for a breach of duty claim is most likely going to be a beneficiary under the will in dispute.

What would need to be proved?

The difficulty faced by a beneficiary in this situation is the presumption in favour of the executor. The court is unlikely to interfere with the discretion of a testator to appoint a particular person as executor of their estate. It will need to be established that the conduct of the nominated person is serious enough to warrant removal from the position.

Possible outcome

The executor or trustee made be removed and a new executor or trustee will be appointed.

A trustee may be personally liable for any loss caused as a result of their actions

Section 77 of the trustees act 1962 (WA), the court may appoint a new trustee where a trustee has been held ‘to have misconducted himself in the administration of the trust’

The Law

Under section 40 of the Wills Act 1970 (WA), any person is entitled to apply to the Supreme Court for an order to be made authorising the court to make or alter a will in specific terms approved by the court, or to revoke whole or any part of the will- on the basis that the testator lacks the necessary testamentary capacity.

Who can contest a will this way?

Under Section 40 of the Wills Act 1970 (WA), any person is entitled to apply to the Supreme Court for an order to be made authorising: the court to make or alter a will in specific terms approved by the court, or to revoke the whole or any part of the will, if it is2 on the basis that the testator lacks testamentary capacity

What would need to be proved?

An applicant must provide the following:

• written statement of the nature of application and reasons for the application;
• estimate of the nature and value of person’s assets and liabilities;
• any evidence available to applicant as to wishes of the person;
• evidence as to the person having testamentary capacity at a later time; and
• reference to any gift that the person might be reasonably expected to make.

Possible outcome

The court may make a new will or may alter a will in specific terms, or the whole or any part of the will may be revoked.

The Law

A defendant seeking to rely on undue influence to challenge the will, will have to demonstrate the following:

• that another person had the capacity to influence the will-maker;
• the influence was exercised;
• its exercise was undue;
• its exercise brought about the transaction; (Johnston v Johnston [2003] QSC 075)

Hood J of the Supreme Court of Victoria in 1897: "to constitute undue influence there must be coercion or pressure, so as to overpower the volition of the testatrix; there must be some substitution of another mind for hers"

The following factors may help to determine an assessment of undue influence:

• relationship factors, such as confidential or close relationships between vulnerable will-makers and family, friends or carers;
• social/environmental factors such as dependency and isolation;
• psychological factors such as grief, loneliness, emotional vulnerability and psychiatric illness.

Any individual who believes that the testator’s will was not made freely and voluntarily. However this is most likely to be a family member or close relative.

What would need to be proved?

The burden of establishing undue influence rests on the person making the assertion. From an evidentiary basis it is extremely difficult to establish undue influence where the person who could provide the best evidence is deceased. Mere suspicion on behalf of a disappointed potential beneficiary will not suffice.

Possible outcome

Where the court is satisfied that the testator was unduly influenced and not expressing their true intentions, the court may consider the whole will or parts of the will invalid. Any gifts made would then be dealt with according to the rules of intestacy.