Challenging a Will

In Western Australia, a person who seeks to challenge the validity of a deceased’s will must do so under the Wills Act 1970 and the Administration Act 1903 in the Supreme Court. This page deals with challenging a will in WA.

Challenging a will vs contesting a will

It is important to distinguish between challenging and contesting a will.

Challenging a will means arguing that the will is invalid. This may be for a range of reasons such as lack of testamentary capacity during the signing, or forgery.

Contesting a will involves arguing that the will’s terms are unjust because they fail to provide sufficiently for someone close to the testator. In such cases, the person challenging the will seeks court intervention to ensure a fair distribution of the estate.

Probate caveats

The validity of a will can be challenged prior to a grant of probate being obtained by the executor. Under section 63 of the Administration Act 1903, a person can lodge a caveat with the Principal Registrar of the Supreme Court of Western Australia, preventing a Grant of Probate being made.

If you are unsure of whether probate for a will has been applied for, it is recommended that a search of the Probate Records of the Supreme Court Registry be conducted. A simple search request form can be downloaded from the website of the Supreme Court of Western Australia. Once the form is completed, it can be lodged with the Probate Registry, together with the requisite search fee. Armstrong Legal can also undertake searches of the Probate Registry on your behalf.

If a Probate application has not been filed, you can lodge a caveat. A caveat can serve a dual purpose in that:

• you will be notified when Probate is applied for. A caveat may be removed immediately, if you simply wish to be notified of the Probate application; or
• you dispute the validity of the Will.

A probate caveat can be lodged by a person who has an interest in a deceased estate. That person may be:

• a beneficiary under the current will;
• a beneficiary to an earlier will of the deceased;
• a beneficiary by way of intestacy (next of kin).

Once a probate caveat is lodged, it will remain in force for a period of six months, unless it is challenged by way of an application lodged by a person seeking to obtain a grant of probate. When an application is lodged by a person seeking to obtain a grant of probate, the caveator is given notice of the application. The parties are then required to present their cases to the Registrar for a determination in relation to the validity of the will.

If the intention of lodging the caveat is to challenge the validity of the will, the court will then require the parties to file affidavits in support of their respective positions. The court will then arrange for a judicial case conference to take place, in the hope that the matter can be resolved between the parties through mediation. Should the parties fail to reach a settlement at mediation, the matter will progress to a hearing for determination by the Court Registrar.

Grounds for challenging a will

A will can be challenged on one or more of the following grounds.

Testamentary capacity

The testator (will-maker) lacked the mental capacity to make a will and understand the consequences arising from it. Medical evidence of the testator’s incapacity will be required to support a challenge on this basis.

Fraud

There was fraud involved in the production and execution of the will.

Lack of knowledge or approval

The will-maker lacked knowledge of the will or did not approve the contents of the will.

Undue influence

There was undue influence or duress involved in the making of the will. This means that the testator was compelled to make their will in a way that did not reflect their true wishes.

For a challenge on this basis to succeed, it is not enough to prove that the testator was pressured to make their will in a particular way. It must be shown that their will was overborne.

Forgery

A will can be challenged on the basis that it is a forgery. This may be because the document was created and signed by someone other than the testator, or because there was a later version of the testator’s will that has been destroyed or hidden so that this one will be treated as their final will.

Formal requirements of a will

The formal requirements for a will in WA to be valid are set out in the Wills Act 1970. These include:

• that the testator must be over 18 (section 7);
• that the will must be in writing, signed and witnessed (section 8);
• that if the will is altered, alteration is made in the prescribed format (section 10);
• that the will was executed in accordance with the laws in the place where it was executed (section 20).

In certain circumstances, the court has the discretion to dispense with the formal validity requirements for a will and recognise a will that does not comply with them. This is assessed on the circumstances of each case and with reference to the evidence submitted to the court to support such an application.

Costs of challenging a will

The cost of challenging a will in Western Australia depends on the outcome and the time spent on the matter. Generally, an order for payment of costs can be obtained by the successful party. This sum will not necessarily cover all legal costs and can be referred to as party/party costs or ordinary costs.

The amount which must be paid to the successful party can either be determined by the court or by agreement between the parties. If the parties are unable to agree regarding the costs which must be paid to the successful party, then an application can be made for a cost assessment.

If a party is unsuccessful, then they may be liable for the other party’s costs as well as their own. This means that they may have to pay the fees of their opponent as agreed or as assessed as well as their own legal fees.

Your Armstrong Legal lawyer will discuss with you how the costs in your case will be calculated so that you are aware from the outset of the matter of the fees which you may recover if you win or the fees that you will pay if you lose your case.

Time limits for challenging a will

A challenge to the validity of a will must be initiated either:

• before an application for a Grant of Probate has been made; or
• prior to probate being granted by the court, but after lodgement of a probate application by the executor.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.