Wills, Estates and Beneficiary Rights – Part 2: Beneficiary rights

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”). Wills Estates Disputes challenge a will, contest a Will

Who can claim for further provision in WA?Karolina Rzykowska

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:

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:

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:

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:

then please contact Karolina Rzymkowska at karolina@bailiwicklegal.com.au or phone 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.

« Back to News