If you have been excluded from a Will or believe your bequest to be unfair, you may choose to take legal action to be adequately provided for. However, there are time limits to contest a will in WA, so you must act swiftly if you intend to file a claim with the Supreme Court.
At Affinitas Legal, we appreciate that this process can be complex and stressful in an already emotional situation. Below, we explain the time limit to contest a Will, or in other words, make a Family Provision Claim against a deceased estate in WA – and how to navigate an out-of-time claim effectively.
When should I contest a Will?
If you believe that you have been left out of a Will unjustly or inadequately provided for, you can take legal action to receive your fair share.
Under the Family Provision Act 1972, you may apply to the Supreme Court for appropriate provision from the deceased estate by lodging a Family Provision Claim.
If this claim is successful, the deceased estate will be redistributed to provide you with a portion or greater portion of its assets as the Court sees fit.
Note that before filing with the Court, you must first write to the executor of the estate and let them know of your intent to contest the Will.
What is the time limit to contest a Will?
There is a time limit to contest a Will In Western Australia. Typically, you must make your Family Provision Claim within six months of the executor obtaining a Grant of Probate. Therefore, we strongly recommend that you notify the executor of your intent to contest the Will and begin the process of doing so as soon as possible.
The aim of this deadline is to strike a balance between the rights of beneficiaries to obtain their inheritance, and the rights of eligible claimants to dispute the Will if it fails to adequately provide for them.
How long does contesting a Will take?
The time it takes to contest a will varies according to whether your case requires a court hearing. With the help of an experienced solicitor, you may be able to negotiate with the executor and reach a fair settlement privately and cost-effectively within weeks.
If you cannot reach an agreement in such a way, you will need to file the necessary legal documents to commence court proceedings – a process that can take up to six months before you are referred to mediation.
If such mediation proves futile, you must then file a Family Provision Claim, which can take the Court around 18 months to process depending on the complexity of your case and the Court’s available resources at the time.
What if the time limit to contest a Will has passed?
If you have missed the deadline to contest a Will, you may file a motion to make an out-of-time application. Under the Family Provision Act 1972, the Court has the power to permit late applications depending on the circumstances at hand.
Your request may be granted if the Court believes that an extension is just and fair, according to factors such as:
- The grounds for the delay;
- The degree of the delay;
- How quickly the claimant provided the executor with notice of their intention to dispute the Will;
- Whether negotiations between the claimant and executor began within the time limit but did not culminate before the deadline;
- Whether the estate has been partly or entirely distributed by the time the executor receives notice of the claim;
- Whether a beneficiary has altered their circumstances in such a way that depends on the inheritance in question;
- Whether the claimant has presented a reasonable case; and
- The claimant’s alternative options for redress if the extension is denied.
If the estate has already been distributed as per the original Will, then the Court may be able to make an order under the Trustees Act 1962 to recover such assets from beneficiaries in certain circumstances.
However, this will be unlikely to occur if the beneficiaries have adjusted their circumstances under the presumption that they had incontrovertible ownership of these assets.
Get personalised legal advice on contesting a Will in WA
Have you been unfairly left out of a Will or feel that you are entitled to more inheritance? Seeking legal support from an experienced Wills and Estate lawyer now will help you to resolve the matter promptly.
If you would like personalised advice on your rights or have missed the time limit to contest a Will, we strongly suggest contacting an experienced lawyer as soon as possible. At Affinitas Legal, our Wills and Estates lawyers are here to support you with even the most complex matters. Please get in touch with our team in Perth for tailored assistance with your case today.
