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Contesting & Challenging Estates

28 March, 2018

Regardless of whether you have a valid Will, the following persons have the ability to apply to the Supreme Court of Western Australia under the Family Provision Act 1972 (WA) for a provision to be made for them out of your estate if they have not been adequately provided for:

  • 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: 
    • who was being maintained 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;
  • a stepchild of the deceased, if: 
    • the deceased received or was entitled to receive property from the estate of a parent of the stepchild, other 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;
  • 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.

Are there time any time constraints?
An application to contest or challenge an estate under the Family Provision Act 1972 (WA) must be brought within 6 months from the date on which the administrator becomes entitled to administer the estate of the deceased in Western Australia unless the Court grants leave to bring the application out of time. It is, however, rare for leave to be given to make an application outside of the 6 month period specified.  

At Hale Legal, we have considerable experience in dealing with claims under the Family Provision Act and are happy to assist you with any claim. 

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