When a beloved family member passes away, you may be subject to challenges to the Will or the estate of the deceased, or instead, you may wish to contest the Will since you believe that the deceased may not have had the mental capacity at the time when the Will was drafted and enforced, which means that they have left you with less that you should be entitled to.
In these circumstances, you may be considering contesting a Will or an estate where there is no will. At WN Legal, we can provide you with information and advice regarding your rights and the legal process’ involved in resolving your matter.
Are you eligible to make an Inheritance Claim?
Not all family members are eligible to challenge a Will or estate of the deceased. Under s. 7 of The Family Provision Act 1972 (WA), the following people can make a claim:
- A person who was married to, or living as the de facto partner of, the deceased person immediately before the death of the deceased person;
- A person who at the date of the death of the deceased was receiving or entitled to receive maintenance from the deceased as a former spouse or former de facto partner of the deceased whether pursuant to an order of any court, or to an agreement or otherwise;
- 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:
(i) Who was being maintained wholly or partly by the deceased immediately before the deceased’s death; or
(ii) 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
(iii) 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;
- A stepchild of the deceased, if:
(i) 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
(ii) The value of that property, at the time of the parent’s death, is greater than the prescribed amount;
- A parent of the deceased, whether the relationship is determined through a legal marriage or otherwise, where the relationship was admitted by the deceased being of full age or established in the lifetime of the deceased.
In what circumstances can you make a claim?
- Where there is no Will
(i) If there is no Will then the estate will be distributed as per the Administration Act 1903 (WA). If you did not receive a share or did not received what you believe you are entitled to under this Act, then you can seek a higher provision of the estate.
- Where there is a Will
(i)Where you feel that you have not been given the amount which you may be entitled to;
(ii) Where you have been unfairly left out of the will.
What will the courts look at when assessing your claim?
- The size of the deceased estate;
- The age, financial circumstances and the health of the claimant;
- From the evidence that you have provided, that the deceased has failed to make adequate provisions for your:
(iv) Advancement in life
- Your relationship with the deceased.
NB: The decision is entirely at the discretion of the Courts and they may make any orders that they think is fit for the circumstances.
What time limits will apply?
Under the Family Provision Act 1972 (WA), you have 6 months of Administration or the grant of Probate.
Please do not hesitate to contact WN Legal if you require legal assistance in this area of law. Our Estate Lawyers, can assist you in understanding the legal avenues and guide you through the inheritance claims process.