There are 3 main reasons why family members challenge Wills:

  1. a person has not received a fair distribution from the Will (an inheritance claim);
  2. the validity of the Will is doubted; and
  3. the meaning of the Will is unclear.

Inheritance claims

If you believe that:

(1) a Will is unfair because you have been left out of the Will, or you only received a small amount under the Will, or

(2) the Will is invalid because the deceased did not have mental capacity or was subject to undue influence or pressure by someone,

you may wish to consider contesting the deceased’s Will to receive your proper entitlement.

It is also possible to challenge a distribution under the Administration Act if the person died without a valid Will.

If you make an inheritance claim, the Executor of the deceased estate must not make any further distributions from the deceased estate.

Where a deceased’s Will does not make adequate provision from the estate for the proper maintenance, support, education or advancement in life, the Supreme Court may order that a greater provision be awarded to you.

In WA, a spouse, de facto spouse, former spouse, step-child, grandchild or parent may make an inheritance claim under the Family Provision Act 1972 if they wish to challenge the validity of the deceased’s Will or codicil, or more generally to obtain a greater inheritance under the deceased’s Will. Under changes to the law in WA in 2013, a step-child is eligible to challenge a Will only in limited circumstances.

Who is a de facto?

There may be no simple answer to the question. Each case is determined by its facts and undoubtedly, no 2 cases are alike. There are many factors taken into consideration by the Courts including;

  1. the length of the relationship between them;
  2. whether the 2 persons have resided together;
  3. the nature and extent of common residence;
  4. whether there is, or has been, a sexual relationship between them;
  5. the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  6. the ownership, use and acquisition of their property (including property they own individually);
  7. the degree of mutual commitment by them to a shared life;
  8. whether they care for and support children; and
  9. the reputation, and public aspects, of the relationship between them.

Will validity challenge

You can challenge the validity of a Will if, for example:

  1. there is a question whether the deceased person had testamentary capacity; or
  2. there is a question about compliance with the Wills Act 1970 (WA).

For a Will to be valid, it must:

a. be in writing and be witnessed by 2 witnesses; and

b. the testator must intend that the document will be their Will, while knowingly and freely approving of its contents.

A testator must be of sound mind and understand their Will. Commonly, issues arise from people suffering from dementia and psychosis. Whether a person had testamentary capacity is a question of fact and this may only be determined from the available and admissible evidence.

If you are concerned about the validity of a Will, you may need to take legal steps before a grant of probate is issued by the Supreme Court.

Dementia and capacity to make a Will

When the death certificate of a loved one discloses that the deceased suffered from dementia, it will be necessary to consider whether the deceased had capacity to make a valid Will.

There may be no simple answer to the question of whether the deceased’s Will is valid, depending upon the circumstances.

A person may have a mild form of dementia and if so, any Will properly executed will likely be valid. Therefore the legal issue will be the extent of the impairment to the person’s insight, judgment and decision-making skills.

A testator must be of sound mind, memory and understanding to make a valid Will. What is required of a testator is that the testator:

  1. understands the nature and effect of a will;
  2. knows the nature and extent of their property;
  3. comprehends and appreciate the claims to which they ought to give effect; and
  4. is not affected by delusions that influence the disposal of their assets at the time they are making their Will.

Evidence from a solicitor who prepared the deceased’s Will, or from the deceased’s doctor may assist in determining the extent of the deceased’s impairment from dementia.

If the deceased’s latest Will is invalid, an earlier Will may be valid and should be admitted to probate in the Supreme Court of WA.

The meaning of a Will

There may be a dispute about the meaning of the clauses in a Will. If the testator’s intention is not clear, a Court may be required to determine the meaning of the Will and this will involve considering the surrounding circumstances, general rules of construction of Wills and the usual or ordinary meaning of words.

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