Wills, Estates and Beneficiary Rights – Part 2: Beneficiary rights
October 29, 2026
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Part one of this series looked at beneficiary rights in relation to Wills. In part 2 of the series we will focus on disputes in relation to estates.
Here in Western Australia, disputes relating to the division of assets in an estate are governed by the Family Provision Act WA(“the Act”).
Who can claim for further provision in WA?
The Act sets out the class of persons who are entitled to bring a claim against a deceased person’s estate. This class is limited to:
- Spouses (including a de facto partner)
- former spouses or de facto partners if they were receiving (or entitled to) maintenance from the deceased
- children
- step-children, in some circumstances
- grandchildren, in some circumstances
- the deceased’s parents
How does the Court determine whether further provision ought to be made for a claimant?
If you fall within the class of potential claimants, then the Court may change the disposition of a deceased’s estate to make further provision for you. In determining whether a change ought to be made, the Court must carry out a two stage process:
- The first stage involves determining whether the disposition of the deceased estate by Will makes adequate provision from the estate for the proper maintenance, support, education or advancement in the life of the claimant, and
- If the Court determines that adequate provision has not been made for the claimant, then the Court may order such provision as the Court thinks fit to be made out of the deceased’s estate for the proper maintenance, support, education or advancement in life of the claimant.
In order for the Court to make a determination that inadequate provision has been made for a claimant, the claimant needs to establish that they have a financial need for further provision. The more financially well-off a claimant is, the less likely it is they will be able to satisfy the Court that provision ought to be made for them.
What is the process for commencing an FPA Claim?
If you believe that inadequate provision has been made for you from an estate, then you have 6 months from the issue of a Grant of Probate in which to commence an action in the Supreme Court. The Court does however have the discretion to extend this time limit in special circumstances.
The process is usually commenced by the claimant filing an Originating Summons (this is akin to an application form) and a first affidavit.
The originating summons must set out what changes the claimant would like the Court to make to the Will of a deceased, or in the case of an intestacy (dying without a Will), to the statutory formula dividing the deceased’s estate. The Court will no longer accept applications which simply ask the Court to make “orders which the Court thinks fit and proper”.
The Court requires claimants to join all affected parties to the application. This means that if a claimant is asking the Court to alter a Will so that a property which is due to pass to person X under the Will instead passes to the claimant, then person X must be joined to the proceedings.
As part of a claimant’s application, they are also required to swear and submit a first affidavit to the Court which states matters such as:
- Confirmation of their eligibility to bring a claim under the Act (i.e. confirmation as to which class of beneficiaries they belong to)
- Their income, financial resources and expenditure
- Their assets and liabilities (including details of values and how these values have been determined)
- Their state of health
- Where a claimant has a spouse, then (B) to (D) above in relation to the spouse too
Most Family Provision Act claims settle at the first Court ordered mediation. This means that very few matters actually proceed to trial.
How are legal costs in FPA claims dealt with?
The legal costs of a claimant will not automatically be paid from the estate.
Ordinarily, where a matter settles as a mediation, each party bears their own legal costs.
If the matter proceeds to trial, the Court has the discretion to award costs in favour of a successful claimant. However, where the claimant is unsuccessful, the Court may order the claimant to pay their own legal costs ans also those of the other parties’.
Summary
If you are concerned that:
- inadequate provision has been made for you under a deceased person’s Will,
- inadequate provision has been made for you on an intestacy (i.e. because the deceased person died without a Will),
- you have not been included as a beneficiary under a Will, or
- you need assistance in defending your entitlements under a Will or intestacy,
then please contact us at 9321 5451 to discuss your rights.
For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/
The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
For many growers, the biggest barrier to pursuing a claim is not the legal process itself. It is the relationship. In regional communities, suppliers, agronomists and growers often work together over many years, and many farmers are understandably reluctant to raise concerns if they believe it may damage a valued business relationship. Recent discussions regarding the performance of certain canola varieties have highlighted an important issue for farming businesses: protecting your legal rights does not necessarily mean taking an aggressive approach or ending a long-standing commercial relationship. Where concerns arise about the performance of a seed variety, chemical or other agricultural product, growers are often hesitant to make inquiries or seek compensation because the supplier may be a trusted local business or a person they have dealt with for decades. However, raising legitimate concerns and seeking advice should not be viewed as a personal attack. In many cases, suppliers will notify their insurer as soon as a significant claim is raised. From that point, discussions regarding liability and compensation are often managed by insurers, loss assessors and legal representatives. As a result, a grower may effectively be dealing with an insurance claim rather than a dispute directly with the supplier. That distinction is important. A claim can often be investigated and resolved without permanently damaging an otherwise productive business relationship. At the same time, growers should be aware that not every supplier is insured for every type of loss. Some businesses may not carry insurance that responds to large-scale agricultural claims, while others may not have sufficient coverage where multiple growers are affected. Early advice can therefore be critical in understanding both your legal position and the practical realities of recovery. If you are experiencing concerns regarding crop performance, keep detailed records, retain product packaging, batch information, invoices and correspondence, obtain independent agronomic advice, and seek legal advice before signing any settlement agreement, release or non-disclosure agreement (NDA). Protecting your rights does not have to mean burning bridges. Often, the best outcomes are achieved through early communication, careful investigation and practical resolution. Author: Matilda Lloyd, Associate Director of Bailiwick Legal, assists farming families and agribusinesses throughout Western Australia with commercial disputes and risk management. For assistance with all of your agribusiness needs, contact Bailiwick Legal: West Perth Office on 08 9321 5451 or email office@bailiwicklegal.com.au Bridgetwoen Office on 08 6288 6240 or email bridgetown@bailiwicklegal.com.au For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
One of the most common concerns we hear from growers experiencing issues with agricultural products is: "I don't want to sue someone I've known for years." In regional communities, business relationships matter. Suppliers, agronomists and growers often work together over many seasons, and many farmers are understandably reluctant to take action if they believe doing so may damage those relationships. However, pursuing a claim does not necessarily mean attacking a long-standing business relationship. In many cases, the supplier will notify its insurer of the claim and the matter will be managed by the insurer and its representatives. Where insurance is available, discussions regarding compensation often proceed through the insurer's claims process rather than as a personal dispute between grower and supplier. For that reason, growers should not assume that raising legitimate concerns about product performance will automatically result in the loss of an important commercial relationship. That said, every situation is different. Some suppliers may not carry insurance for particular losses, and others may not have sufficient insurance coverage to respond to multiple large-scale claims. In those circumstances, early advice can be particularly important, both to preserve evidence and to understand the practical options available. If you believe a seed variety, chemical or other agricultural product has not performed as represented, keep detailed records, obtain independent agronomic advice and seek legal advice before signing any settlement agreement, release or non-disclosure agreement. The earlier advice is obtained, the more options are generally available. Author: Matilda Lloyd, Associate Director of Bailiwick Legal, assists farming families and agribusinesses throughout Western Australia with commercial disputes and risk management. For assistance with all of your agribusiness needs, contact Bailiwick Legal: West Perth Office on 08 9321 5451 or email office@bailiwicklegal.com.au Bridgetwoen Office on 08 6288 6240 or email bridgetown@bailiwicklegal.com.au For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
Recent concerns regarding the performance of certain canola varieties have attracted significant attention across the Western Australian grain industry. The issue was recently discussed on the ABC WA Country Hour, where Philip Brunner, Director of Bailiwick Legal, commented on the legal issues that may arise when agricultural products fail to perform as expected. Farmers understand that crop performance can be affected by seasonal conditions, rainfall, frost, pests, disease and other factors beyond their control. However, different considerations may arise where a seed, chemical or agricultural product does not perform consistently with the representations made by the supplier at the time of sale. A well-publicised dispute involving John Snooke, a grower from Cunderdin, highlighted these issues when concerns were raised regarding the performance of a herbicide-tolerant canola variety. Following intervention by the WA Department of Consumer Protection, compensation was ultimately paid to affected growers. As input costs continue to increase, growers should be aware that legal protections may be available where a product: Does not match its description; Is not fit for its intended purpose; or Fails to perform in accordance with representations made by the supplier. If a crop is underperforming, growers should retain seed tags, invoices, marketing materials and paddock records, obtain independent agronomic advice and notify the supplier as soon as possible. Early evidence can be critical in assessing whether a legal claim may exist. Importantly, growers should not sign any settlement agreement, release or non-disclosure agreement (NDA) without first obtaining independent legal advice. These documents may limit future rights or prevent growers from discussing the issue with others who may be similarly affected. Author: Matilda Lloyd, Associate Director of Bailiwick Legal, assists farming families and agribusinesses throughout Western Australia with commercial disputes and risk management. For assistance with all of your agribusiness needs, contact Bailiwick Legal: West Perth Office on 08 9321 5451 or email office@bailiwicklegal.com.au Bridgetwoen Office on 08 6288 6240 or email bridgetown@bailiwicklegal.com.au For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
