Contesting a will – Not everyone can contest a will. In order to contest a will, a person wishing must have ‘standing’ or a valid interest. Whether or not you have standing will depend upon the reasons why you say a will is either invalid or should be varied.
Two common grounds upon contesting a will and those are:
- Because you say the Deceased lacked capacity at the time when they made the will; or
- In Western Australia under The Family Provision Act because you say that the will does not make adequate and proper provision for you.
If contesting a will is made on the grounds that the Deceased lacked capacity. A person will have standing to contest the will. If they are the executor or beneficiary of a prior will made when the Deceased person did have capacity. When there is no earlier will, would take under the rules of intestacy in Western Australia.
If contesting a will is made under The Family Provision Act, the persons who can apply for provision from the Deceased’s estate are set out in Section 7 of the Family Provision Act.
- A spouse, including a de facto spouse;
- A former spouse who was receiving or entitled to receive maintenance from the deceased;
- A child (including an adult child) of the Deceased;
- A grandchild who:
- Was being maintained by the Deceased; or
- Whose parent (the Deceased’s child) had already died before the Deceased.
- A step child (although the circumstances in which a step child can bring a claim are limited).
- A parent of the Deceased;
If a will is to be challenged it should be done as soon as reasonably possible. It may be necessary to lodge a caveat at the probate office. This may stop any application for probate of the contested will being made.
Any claim under the Family Provision Act must be brought within 6 months of the grant of probate of the will being made. A claim can be brought outside of the 6 month period. An application to court will need to be made for permission to bring the claim out of time. This will depend on the circumstances, permission may not be granted.
Contesting a will- Who should you go to for legal advice?
You need to find a solicitor who is an expert in both the preparation of wills and will disputes.
The best recommendation is probably a word-of-mouth referral from someone who has been through the process themselves.
If (and you undoubtedly are) reading this article on the internet, a word of caution: this area of the law is heavily advertised and spruiked. There are legal firms that are not even based in Western Australia (but appear to be) that advertise heavily on the internet. Please read the warning below.*
If you ring the Law Society of Western Australia (08 9324 8600) they will provide you (free of charge) with a list of lawyers in your area who may be able to assist you.
What does a Family Provision Claim or contesting a will cost?
Contesting a will- Legal Costs can be daunting.
A good starting point to understanding legal costs can be found in this Choice Magazine article: legal fees.
The Legal Costs Committee in Western Australia published the following comments recently (2019 March edition of ‘Brief’):
“Plaintiffs’ costs (can be) an impediment to settlement at mediation because of the structure of fee arrangements entered into with their solicitors e.g. no payment up front but a payment in the range of $35,000 – $70,000 within two weeks of settlement/judgement regardless of outcome, a problem associated with some lawyers based outside WA and who obtain their clients from marketing on the internet”.
Informed clients will have regard to Paragraph 13 (Table B, item 12) of the Supreme & District Courts (Contentious Business) Costs Determination. This provides for a maximum charge of $7,250 payable by a Plaintiff to their solicitor to take a matter to a mediation conference (where about 90% of matters settle) – between 1/5 and 1/10th of the price that you might otherwise pay a lawyer. Or to put it another way, if you picked the wrong lawyer, you could be paying TEN TIMES as much as you should.
In this area of the law, many law firms will offer to act on a ‘no win, no fee’ basis. Of course, this is illusory in many respects as they will only do so if they form the view that you can’t lose. Usually, such law firms will only act on that basis if you enter into a “Costs Agreement” that entitles them to charge you far more than what is otherwise permissible under the Costs Determination. See the Warning above- which should not be read as being limited to only non-Western Australian firms.
A better arrangement than a ‘no win, no fee’ agreement is an arrangement whereby your solicitor may allow you to defer payment of your fees until after the conclusion of your case. They will usually do that if they think that you will receive at least some payment from the estate.