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CHALLENGING A WILL

A Will is a document that sets out the writer's intention as to what should happen to his or her property upon death.

The will maker, (or "Testator") usually appoints a person to act as the executor of the Will. The Executor is responsible for obtaining a grant of probate (which confirms the Executors authority under the Will), gathering together the property of the deceased, clearing all debts and finally distributing the remainder of the estate in accordance with the terms of the Will.

Should a person die without leaving a Will, the Administration Act 1903 will determine how the deceased's estate is to be distributed. This situation is known as "intestacy". In latter cases there are a number of ground upon which the distribution of a person's estate can be challenged.

A. Validity of a will

There are a number of grounds that may lead a Court to determine that the Testator did not have capacity to make a will.

For example, the Testator:

  • was not of sound mind, memory and understanding;
  • was affected by the undue influence, misrepresentation or fraud of a third party;
  • was affected by alcohol or other substance; or
  • lacked the necessary intention to create a binding Will.

An application may be made to the Supreme Court of Western Australia to challenge the validity of a Will.

If the challenge is successful and the Court determines that the Testator lacked capacity, then the Will may be set aside, in whole or in part, depending upon the circumstances.

A successful challenge to the validity of a Will requires evidence. If you are considering bringing an action, you should seek legal advice as soon as possible.

B. Construction - What do the terms of the Will mean?

There are occasions where the testator's intention as to the disposal of property after death is unclear. There may be clauses that are vague or ambiguous in their meaning.

In these circumstances, an applicant is not seeking to challenge the validity of the Will, but rather is seeking the assistance of the Court in the interpretation (or "Construction") of the Will.

An application to clarify the Testator's intention may be made to the Supreme Court of Western Australia.

Such a challenge will require the application of, and possibly argument regarding, legal principles of construction. If you are considering bringing such an action you should seek legal advice as soon as possible.

C. Applications pursuant to the Inheritance Act.

A Testator generally has the right to determine what will happen to his or her property after death. But that right is subject to the power of the Court, in certain circumstances, to vary the terms of a Will in favour of a family member or dependant of the deceased. If there is no will, the Court can also vary the statutory provisions which set out how an estate is distributed. The statutory provisions are in the Administration Act 1903.

Section 6 of the Inheritance (Family and Dependants' Provision) Act ('the Inheritance Act'), enables the Supreme Court of Western Australia to override, or vary, the terms of a Will, or the terms of the Administration Act where there is no will.

As the title indicates, the Inheritance Act concerns itself with the rights of the family and of the dependants of the deceased. The Court has the power to vary a Will or the terms of the Administration Act where there is no will in favour of a defined eligible person, where the Will or the Administration Act do not make adequate provision "... for the proper maintenance, support, education, or advancement in life" of that person.

Prior to commencing an application, it is important to determine whether or not an applicant falls within a category of person who is entitled, under the provisions of the Inheritance Act, to bring an application ('an eligible person').

If an applicant is not an eligible person, the applicant will have no right to seek a variation of the terms of the Will or the Administration Act terms and the Court would have no power under the Inheritance Act to make a variation in any event.

Should the applicant pass the threshold test and satisfy the Court that he or she is an eligible person, then the Court will consider the Will of the deceased or the statutory distribution and whether there is adequate provision for the "... proper maintenance, support, education, or advancement in life" of the applicant.

If it is determined that the deceased failed to make adequate provision for the applicant, the Court will then consider whether or not to make an order in favour of the applicant and if so, how the Will or the statutory distribution is to be varied.

An application under the Inheritance Act must be commenced as soon as possible so as to prevent a distribution proceeding.

Delay may also prejudice your right to bring an application under the Inheritance Act. An application must be commenced within 6 months of the grant of probate or administration. An application may only be commenced after 6 months with the leave of the Court, which can be difficult to obtain.

Contemplating Proceedings?

An action seeking to challenge a Will or the statutory distribution must be commenced in the Supreme Court of Western Australia and should be commenced as quickly as possible. Delay may prejudice, or prohibit, your right to so challenge.

Litigation can also be complicated and can move very quickly.

AM I ENTITLED TO MAKE A CLAIM UNDER THE INHERITANCE ACT?

Section 6 of the Inheritance (Family and Dependants' Provision) Act ('the Inheritance Act'), enables the Supreme Court of Western Australia to override, or vary, the terms of a Will or the statutory provisions for distribution of an estate when there is no Will, but only in very limited circumstances.

As the title indicates, the Inheritance Act concerns itself with the rights of the family and the dependants of the deceased.

The Court only has the power to vary a Will or the statutory distribution in favour of defined eligible persons, where there is not adequate provision "...for the proper maintenance, support, education, or advancement in life" of that person.

Prior to commencing an application therefore, it is important to determine whether or not you are 'an eligible person'. If an applicant is not an eligible person, that person will have no right to seek a variation and the Court would have no power under the Inheritance Act to make a variation in any event.

An application for provision out of the estate of a deceased person may be made by, or on behalf of, all or any of the following 'eligible persons':

  1. Widow or Widower of the Deceased
  2. Ex-Husband or Ex-Wife of the Deceased

Under Section 7 (1)(b) of the Inheritance Act, an ex-husband or ex-wife of the deceased may bring an application, provided they are:

  • a person whose marriage to the deceased has been dissolved or annulled; and
  • a person who, at the date of the death of the deceased, was receiving or was entitled to receive maintenance from the deceased, whether pursuant to any order of any court, or to an agreement or otherwise.

Prior to commencing an application as, or on behalf of, an ex-husband or ex-wife, you should seek legal advice.

  1. Child

Section 7(1)(c) provides that a "child" of the deceased, living at the date of death of the deceased, may bring an application under the Inheritance Act.

A child 'en ventre sa mere', or in the womb of its mother, will also be entitled to bring an application as will an illegitimate or adopted child.

  1. Illegitimate Child

Whilst section 4 of the Inheritance Act defines the term "Child" to include an illegitimate child, the Court will not recognise the relationship between a father and an illegitimate child unless paternity is admitted by or established against the father in the father's lifetime.

For example:

  • The deceased father may have formally admitted paternity, by his completion of birth information papers.
  • The child may be able to establish that the deceased had informally admitted paternity in his lifetime, for example, by way of correspondence or payment of maintenance.
  • Paternity may have been established by a Court in the father's lifetime.

Satisfying the requirement of Section 4 of the Inheritance Act will require evidence. Prior to commencing an application as, or on behalf of, an illegitimate child, you should seek legal advice.

  1. Grandchild of the Deceased

A grandchild of the deceased may make an application under the Inheritance Act if:

  • at the time of death of the deceased, the grandchild was being wholly or partially maintained by the deceased; or
  • the deceased's (the grand parent's child) had died prior to the deceased (the grandparent); and
  • the grandchild is living at the date of death of the grandparent or en ventre sa mere (is in the womb of its mother).

"Grandchild" is defined in section 4 of the Inheritance Act so as to include an illegitimate or adopted grandchild of the deceased.

However, the Court will not recognise the relationship between a father and an illegitimate child, or the relationship between the illegitimate grandchild and the deceased (the grandparent), unless paternity is admitted by or established against the father of the grandchild in the father's lifetime.

As stated above, satisfying the requirement of Section 4 of the Inheritance Act will require evidence. Prior to commencing an application as, or on behalf of, an illegitimate grandchild, you should seek legal advice.

  1. Parent of the Deceased

    Section 7(1) of the Inheritance Act provides that a parent of the deceased may bring an application:

    • whether the relationship is determined through lawful wedlock or adoption, or otherwise; and
    • where the relationship was admitted by the deceased (the deceased being of full age); or
    • where the relationship was established in the lifetime of the deceased.

    Prior to commencing an application as, or on behalf of, a parent, you should seek legal advice.

  2. De Facto Widow or Widower

A 'de facto widow' is entitled under the provisions of the Inheritance Act to bring an application to vary the terms of a Will.

To qualify as a "de facto widow", the person must, at the time of death, have been;

  • "wholly or partially maintained" by the deceased;
  • "ordinarily a member of the household" of the deceased; and
  • a person for whom the deceased, in the opinion of the Court, had some "special moral responsibility" to make provision.

Satisfying the requirement of Section 7(1)(f) of the Inheritance Act will require evidence. Prior to commencing an application as, or on behalf of, a de facto widow or widower, you should seek legal advice.

Character of the Applicant

Whilst a person may be eligible to make an application under the Inheritance Act, the Court has a further discretion.

Section 6(3) of the Inheritance Act provides that the Court may refuse to make an order in favour of any person on the ground that his character or conduct is such that disentitles him or her to the benefit of an order.

You should seek legal advice as to whether you are an 'eligible person', entitled to bring an application under the Inheritance Act.

FURTHER INFORMATION

This Information Outline is provided courtesy of Dwyer Durack Barristers & Solicitors who are experienced in this area of law. They are located at Dwyer Durack House, 40 St. Georges Terrace, Perth, WA 6000 or call them on (08) 9325-9277 if you would like more information on the legal topic, or you wish to obtain formal advice regarding your situation.

Established in 1914, Dwyer Durack is one of Western Australia's most respected and progressive law firms. It is the leading legal firm in Western Australia for the provision of a comprehensive service in the private client areas of personal injuries, family law, employment law, criminal law, consumer law and wills and estates. The firm comprises 13 Partners and a total compliment of 120 personnel. Dwyer Durack is a member of the Australia-wide PeopleLaw group.

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