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Things to Consider When Making a Will

Things to Consider When Making a Will

I have previously written in one of my newsletters about the many reasons why a will should always be prepared so that your wishes after your death in regards to your wealth distribution can be expressed.

As indicated previously, the absence of a will means that the distribution of your estate is governed by the Administration Act 1903 (WA).

Now, I wish to discuss possible problems that may arise even if you have prepared a will.

The law allows a person who is a dependent of someone who has died and was domiciled in WA leaving assets in WA to challenge the contents of a will if that dependent person does not receive a fair share of the deceased’s property under the will. This can happen for example where a person has a wayward or estranged child and decides not to leave anything in their will to that child. There are certain things the said child can do to challenge such a will.

The Estranged or Wayward Person Applies to The Supreme Court

Under the Family Provision Act 1972 (WA) (“the Act”), a potential interested party if they believe that they have been shortchanged in the distribution of the estate, can launch an action in the Supreme Court of Western Australia. It is then up to the Court to decide whether the Court wishes to interfere with the wishes of the deceased person as written in their will. The Court will interfere if it thinks the will does not properly look after the needs of a person the deceased had a duty to provide for.

Who May Apply?

The Act states that the following interested parties may apply under the Act.

  • spouse or de facto at the date of the death of the deceased;
  • A person receiving or entitled to receive maintenance from the deceased;
  • A child of the deceased living at the date of the death of the deceased, Or born within 10 months after the deceased’s death;
  • a grandchild of the deceased: –
  • who was being maintained by wholly or partly by the deceased immediately before the deceased’s death; or
  • who, at the date of the deceased’s death, was living and one of whose parents was a child of the deceased who had predeceased the deceased; or
  • who was born within 10 months after the deceased’s death and one of whose parents was a child of the deceased who had predeceased the deceased;
  • a stepchild of the deceased who was being maintained wholly or partly or was entitled to be maintained wholly or partly by the deceased immediately before the deceased’s death; and
  • a stepchild of the deceased, if: –
  • the deceased received or was entitled to receive property from the estate of a parent of the stepchild, otherwise than as a creditor of that estate; and
  • the value of that property, at the time of the parent’s death, is greater than the prescribed amount.

How is the Application Made

You should see a lawyer for advice as the law in this area is quite complicated.

Before submitting an application in, the lawyer will need to make sure that you will be able to prove: –

  • your relationship to the deceased;
  • why you believe you are entitled to apply for a share or a larger share of the property;
  • why you believe the deceased person did not provide well enough for you under the will or the law.

Time Limits for Such an Application

There are strict time limits that need to be complied with to ensure that you are able to put in an application under the Act. You must apply within six months of the grant of probate of the will or, if the deceased did not leave a will, within six months of the grant of Letters of Administration.

In very rare circumstances, you may be able to apply for an extension of the 6 month time period. However, it is always a risk to delay any application under the Act. You should see your lawyer as soon as you believe you have a possible claim.

What Happens at the Hearing

Such court action can usually take months, if not years, before the matter is heard by a Judge. There is usually no oral hearing but an argument by your lawyers based on sworn documents prepared before the hearing. The parties are not usually asked to go to court to give evidence, but it can happen sometimes if the matters are unusually complex and the Judge believes that a fair hearing can only take place after listening to oral evidence of the parties. You must be prepared to accept the consequence of such a court action as very often, the already tenuous fabric of the family will be totally torn to shreds as a consequence of such an application.

How the Court Decides Whether to Change the Contents of the Will

After hearing the arguments on both sides the Court will consider the following possible matters in deciding whether to change the distribution of the deceased’s estate contrary to the will of the deceased.

  • how any change to the Will could affect other people in the Will;
  • the relationship to the deceased of other dependents;
  • the needs of other dependents and those of the applicant;
  • the sort of property involved and its value;
  • the ages of the surviving dependents; and
  • the way the applicant acted towards the deceased and their relationship in general.

No lawyer can guarantee to you how such an application will pan out. Each case is unique and the outcome often hangs on the judge who hears the case.

Therefore, when making a will, you should always consider who may launch any such challenge. It may be prudent to leave a token sum or give very good reasons in your will why no benefit is being given to the wayward relative.

Lastly, always inform your lawyers if you are leaving anybody out of your will so that they can at least draft your will to minimise any challenges under the Act.