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Challenging a Will

December 19, 2014

Challenging a Will

If you are involved in a Will Dispute, you should seek legal advice. The information in this fact sheet is intended for informational purposes only and should not be taken as legal advice.

A Will is a legal document that represents a person's wishes on the distribution of their estate once they pass away.  However, there are a variety of options available to challenge a Will. One such option is through a family provision application.

Family Provision Application

In Western Australia, a family provision order is made under s 6 of the Family Provision Act 1972. A court will order that further provision be made from an estate if it is of the view that the applicant has not been left with adequate provision in the Will.

The 'term' adequate provision is relative – a court will compare the standard of living of the applicant now compared to their standard of living when the deceased was alive.

Limitation Period

A family provision application must be made within 6 months of probate or letters of administration being granted. If the application is made outside of this time, the applicant must satisfy the court that justice requires they be allowed leave to file out of time.

What will the Court Consider?

Adequate provision will always depend upon the circumstances of the case. Further, the intervention of the court needs to balance the wishes of the deceased against the perceived claims of family members for provision. Community standards sometimes aid in resolving this dispute (for example, it is universally accepted that a parent needs to make adequate provision for their children).

If you are facing a dispute over a will, or want to make sure that your will is protected from successful family provision applications, please contact D'Angelo Legal on 9381 1147 or to obtain advice.

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