Edward Fleming

Child Custody Rights for Fathers in Western Australia (WA) [Parenting Arrangements]

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One of, if not the most distressing factor faced by a father upon the breakdown of his relationship, is the risk of losing his relationship with his children.

As any loving father would imagine, this scenario would be completely devastating.

Anecdotally, there seems to be a lot of misinformation within the community concerning Courts favouring mothers over fathers when it comes to child custody matters.

In Western Australia, when parents separate, one or both of the parents, a grandparent or any other person concerned with the care, welfare or development of the child may apply to the Family Court of Western Australia (the Court) for a parenting order.

The Family Court is guided by the provisions of the Family Law Act 1975 (Cth) (the Act) of the Family Court Act 1997 (WA) (which, broadly speaking, mirrors the Act) when it considers each application.

The principal object of the Act is to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.

Outdated traditional gender stereotypes are not a factor considered by the Family Court in determining what is in a child’s best interests.

When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for both of the child’s parents to have equal shared parental responsibility for the child.

It is important for fathers to note that parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

It does not necessarily mean that a child spends an equal amount of time with one parent or another although in some circumstances that is a suitable outcome.

The Act places a high value on the parent (both mother and father) and child relationship. It will always be difficult to make a case that a child spends no time with his or her father (or mother for that matter). It is important to appreciate that it is your child’s right to enjoy a meaningful relationship with both of his or her parents.

When could a Court refuse to allow contact between father and child

Relationships involving family violence, particularly where it forms a pattern of dominating and controlling behaviour towards the mother or where a child has been exposed to physical or psychological harm, abuse, neglect or family violence are circumstances where the presumption of joint parental responsibility would not apply, and the Family Court may refuse to permit a father to spend time with his child.

It should be stressed that these cases are certainly the exception rather than the norm.

What can I do if the mother refuses to allow me to see our children?

If the mother is not allowing you access to the children and there are no Family Court Orders in place you should, initially, consider the strategies below to rectify the situation:

  • talk to the mother in a safe environment and express your concerns;
  • attend counselling sessions together, possibly including the children. Anglicare WA (www.anglicarewa.org.au) and/or Relationships Australia (www.relationships.org.au/) are a great starting point. Depending on where you live in Western Australia, they provide Family Dispute Resolution where parents/families can discuss issues relating to their children and develop parenting plans that are in the best interests of their children;
  • see a psychologist together to address factors that may be causing the denial of access; and/or
  • consider privately funded mediation.

In some instances, these steps may not be possible or appropriate particularly if the mother has applied for and obtained an (interim) family violence restraining order.

If that is the case it is important to seek legal advice from a lawyer experienced in family law matters at the earliest opportunity.

Parenting plans for fathers

Parents are strongly encouraged to enter into parenting plans to formalise arrangements in relation to children without recourse to the Family Court.

In practice, a father’s ability to remain actively and meaningfully involved in a child’s life will almost inevitably depend on the cooperation of the mother and their ability to agree on parenting arrangements that allow the child to spend time with each parent.

In the absence of cooperation and consent, a Judge or Magistrate is given the unenviable task of determining what is in your child’s best interests.

The experienced family lawyers at HFM Legal regularly advise clients with respect to children’s matters and assist clients with all other aspects of the breakdown of their relationship including property settlement, maintenance and divorce.

How Do You Calculate Spousal Maintenance in Western Australia (WA)?

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What is Spousal Maintenance?

Spousal maintenance (also known as spousal support) is financial support paid by a party to a marriage to their former husband or wife in circumstances where they cannot adequately support themselves.

When is Spousal Maintenance Payable?

In accordance with section 72 of the Family Law Act 1975 (Cth), a person has a responsibility to financially assist their spouse or former de facto partner, to the extent that the first-mentioned party is reasonably able to do so if the other party is unable to support himself or herself adequately due to:

  1. having the care and control of a child of the marriage who has not attained the age of 18 years; or
  2. by reason of age or physical or mental incapacity for appropriate gainful employment; or
  3. for any other adequate reason if that person cannot meet their own reasonable expenses from their personal income or assets.

Where the need exists, both parties have an equal duty to support and maintain each other as far as they can. This obligation can continue even after separation and divorce. The extent of the support depends on what the other party can afford to pay.

How Do You Calculate Spousal Maintenance?

The is no reliable online calculator that you can use to determine how much spousal maintenance you may be eligible for from a former spouse or de facto partner.

Firstly, relief is discretionary, and secondly, a myriad of factors must be carefully considered in determining an application for spousal (or de facto partner) maintenance.

In short, you (or the Court) will need to consider:

  1. the income and expenses of your former spouse (or de facto partner) and whether or not he or she has the capacity to pay maintenance. That is, does his or her income exceed his or her reasonable expenses?
  2. If not, you are not entitled to maintenance.
  3. If your former spouse or de facto partner has the capacity to pay maintenance you will then need to consider to what extent you are unable to support yourself taking into account a myriad of factors such as:
    1. your age and state of health;
    2. whether you care for a child under 18;
    3. your income and reasonable expenses;
    4. any property and financial resources;
    5. your capacity for appropriate gainful employment;
    6. commitments to support a child or anyone you may have a duty to support;
    7. the eligibility of the parties for a pension, allowance or benefit;
    8. whether either party is entitled to receive or pay child support;
    9. a standard of living in all the circumstances that is reasonable;
    10. the rights of any creditors;
    11. any contribution to the income, earning capacity, property and financial resources of the other party;
    12. the duration and impact marriage;
    13. if either party is living with another party following separation, the financial circumstances of that new party. NOTE: maintenance will cease if you re-marry; and
    14. the terms of any binding financial agreement.

How Do I Apply For Spousal Maintenance?

In many cases, if you and your former spouse or de facto partner can agree on an amount of spousal maintenance, you can formalise the agreement by way of Form 11 application for consent orders or by way of a Binding Financial Agreement.

If you cannot agree with your former spouse or de facto partner, you will need to apply to the Family Court for spousal maintenance. You will need to file the following documents in support of your application:

  1. a Form 1 Initiating Application (or a Form 2 Application in a Case if the case is ongoing);
  2. an affidavit in support of your application; and
  3. a Form 13 Financial Statement setting out your current financial circumstances. NOTE: you will need to complete Part N of the Financial Statement which sets out your weekly expenses.

Fees apply. As of 1 July 2023, the filing fee for a Form 1 Initiating Application is $410 (for final orders only) or $550 (for interim and final orders). See the Family Court of Western Australia’s website for the most up-to-date application fees.

Can I Apply for Spousal Maintenance If I Was in a De Facto Relationship?

De facto partner maintenance is financial support paid by a party to a de facto relationship that has broken down to their former de facto partner in circumstances where they are unable to adequately support themselves.

In Western Australia, section 205ZC of the Family Court Act 1997 (WA) applies and is substantially the same as section 72 of the Commonwealth Family Law Act 1975 (Cth).

Are There Any Time Limits That Apply for Spousal Maintenance?

Strict time limits apply on applications for spousal maintenance.

If you were married, applications for spousal maintenance must be made within 12 months of your divorce order becoming final.

If you were in a de facto relationship, your application for de facto partner maintenance must be made within 2 years of the breakdown of your de facto relationship.

If you do not apply within these time limits, you will need special permission from a court. This is not always granted. You will need to establish that, at the end of the period within which the proceedings could have been instituted without the special permission of the court, your circumstances were such that you would have been unable to support yourself without an income-tested pension, allowance or benefit.

The experienced family lawyers at HFM Legal regularly advise clients regarding maintenance applications and assist clients with all other aspects of their relationship breakdown, including property settlement, children’s matters, and divorce and separation. We have three offices in Western Australia: North Perth, Maddington, and Broome.

What Happens if You Die Without a Will in Western Australia (WA) [Dying Intestate]

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In Western Australia, if you die without leaving a will (known as dying ‘intestate’), your estate will be distributed in accordance with the provisions of a statutory formula which is set out in section 14 of the Administration Act 1903 (WA) (Administration Act. Learn more about what a will is and whether you need a will).

Section 14 of the Administration Act was last amended in 1982 the effect of which has resulted in some reasonably oppressive results, particularly for surviving spouses. For example, under the current formula for the distribution of a person’s estate dying intestate:

  1. a surviving spouse or de facto partner is entitled to the household chattels, the first $50,000 of the estate and one-third of the balance of the estate and any children will equally share the remaining two-thirds of the estate; and
  2. if a person dies without leaving children, a surviving partner will be entitled to the first $75,000 of the estate and one-half of the balance, with the remaining half of the estate distributed amongst the parents and siblings of the deceased.

In the absence of agreement, it is not uncommon for surviving spouses to be forced to dispose of estate assets including the family home to comply with the provisions of section 14 of the Administration Act.

Even with the agreement, in circumstances where children and other family members renounce any rights to benefit under the Administration Act, the surviving spouse may incur significant taxes, such as transfer duty, and other fees, that would not have been incurred if the Deceased had left a valid will.  

On 27 June 2018, the Administration Amendment Bill 2018 was introduced into State Parliament to reform the Western Australian (WA) intestacy laws set out in the Administration Act. These proposed changes will have a significant effect on what happens to a person’s estate if they die without a will.

The Administration Amendment Bill 2018, as presently drafted, will increase the current amounts of the statutory legacies payable on intestacy which are now, as set out above, grossly inadequate. It will also provide a formula for calculating the amount of the statutory legacies in the future.

The Bill aims to remove financial hardship for the surviving spouse or de facto partner and tries to ensure that he or she can live in the manner to which he or she had become accustomed prior to the intestate’s death.

The bill proposes to amend section 14 of the Administration Act to set the amount of the partner’s statutory legacy at $435,000 when the intestate dies leaving children, and $650,000 when there are no children. This is in line with current market values for real estate in this State.

It is not clear when the changes to the Administration Act are going to come into effect.

In any event, it outlines the importance of a carefully drafted will. Losing a loved one is undoubtedly traumatic at the best of times. Ensuring your loved ones are adequately provided for upon your death is one simple step that can be taken to lessen the burden.

The experienced estate planning lawyers at HFM Legal regularly assist clients with the preparation of their wills and all other aspects of their estate planning such as enduring powers of attorney, will disputes, enduring powers of guardianship, superannuation nominations, and advanced health directives. You can contact one of our experienced wills and estate planning lawyers today.

What is a Public Notary in Australia? Everything You Need To Know

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What is a public notary?

A Public Notary is a public officer, usually a practising solicitor, appointed for life by the Supreme Court of Western Australia, and given statutory powers to witness documents, administer oaths and perform other wide-ranging and useful administrative functions of a national and international nature.

Is a public notary the same as a justice of the peace?

No. The main difference between a Justice of Peace and a Public Notary is that a Justice of Peace is only recognised in Australia while a Public Notary is recognised in overseas jurisdictions. A Public Notary acts as a type of international Justice of the Peace.

What does a public notary do?

Among other things, a Public Notary can witness the signing of important documents, administer oaths, witness affidavits and statutory declarations and certify documents to be true and correct copies of original documents both for national and international purposes.

Do public notaries charge a fee for witnessing people sign documents?

Yes. The fees charged by a Public notary are not only for the time taken in providing his or her certificate or the materials and seals used and supplied but is also intended to reflect the importance of the work undertaken and the high office and responsibility of the Public Notary in performing that service.

How much does a Public Notary charge?

A Public Notary may charge a fee for providing notarial services but that fee shall not exceed the fee for those services fixed from time to time by costs determination (as defined in section 252 of the Legal Profession Act 2008 (WA).

What is an Apostille?

An Apostille is a legal process by which a signature, stamp or seal on an official Australian public document is proved to be genuine by being checked and certified by the Department of Foreign Affairs and Trade (DFAT) against a specimen held on file.

How can I get an apostille for a document?

Notarised documents can only be apostilled by the Department of Foreign Affairs (DFAT). Where can I find a public notary? You can visit the Public Notaries Society of Western Australia web page at www.notarieswa.com.au

Contesting a Will in WA: Everything You Need To Know

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Who can challenge a will in Western Australia?

An application for provision out of the estate of any deceased person may be made by or on behalf of a spouse, a de facto partner (or a former spouse or de facto partner in limited circumstances), a child, a parent and, in some limited circumstances, a grandchild and stepchild. Learn more about what a will is and what happens if you die without a will in Western Australia.

How long do I have to challenge a will in Western Australia?

In accordance with the provisions of the Family Provision Act 1972 (WA), the time limit to challenge a will (i.e. issue a will dispute) is 6 months from the date of the grant of probate or letters of administration.

Can siblings contest a will in Western Australia?

A sibling is not an eligible person for the purpose of the Family Provision Act 1972 (WA).

Can an ex-spouse contest a will in Western Australia?

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 may apply for provision from a deceased estate. 

Is it expensive to contest a will in Western Australia?

It can be. However, the Supreme Court of Western Australia adopts procedures to ensure that applications pursuant to the Family Provision Act 1972 (WA) are dealt with expeditiously and cost-effectively and that excessive or unnecessary costs are not incurred. Litigants and potential litigants will generally benefit by obtaining expert advice from an experienced estate lawyer as early as possible after the death of the deceased person.

What does the court consider when someone challenges a will? If the Supreme Court of Western Australia is of the opinion that the disposition of the deceased’s estate effected by his or her will, or the law relating to intestacy, or the combination of his or her will and that law, is not such as to make adequate provision from the estate for the proper maintenance, support, education or advancement in life of an eligible person it may order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.

In forming its opinion the Supreme Court of Western Australia will have regard to the applicant’s financial position, relationship with the deceased, the size of the estate and the deceased’s relationship with other persons who are or may be eligible to make a claim against the estate and their financial circumstances as at the date of the deceased’s death. Adequate provision is complex and difficult to define as it varies with every unique case.

Filing for Divorce in Western Australia: Everything You Need to Know

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When can I apply for a divorce?

To apply for a divorce in Australia you and your spouse must have been separated for 12 months and fit one of the following: be an Australian citizen; live in Australia and regard Australia as your permanent home; or, ordinarily live in Australia and have done so for at least 12 months before the divorce application.

How much does it cost to get divorced in WA?

As of 1 July 2023, the Family Court of Western Australia filing fee for a divorce application is now $1,060 (reduced to $350 in some limited circumstances). Current fees can be obtained from the Family Court’s website.

Do I need a lawyer to get divorced?

You can file a divorce application without the assistance of a lawyer. Applications are now filed online using the Family Court’s Commonwealth Courts ePortal system. However, an application for divorce will not resolve property or children’s matters and it is always advisable to obtain the advice of a lawyer experienced in the area of family law prior to applying for a divorce.

Do I need to live apart from my former spouse to get a divorce?

It is possible for you and your spouse to be separated but to continue living in the same home during the 12 months before applying for a divorce. This is known as ‘separation under one roof’. If this applies to your situation you may need to file additional evidence proving that the marriage has broken down irretrievably.

How is property divided upon separation?

If parties can agree as to the division of their property upon separation then they can formalise the agreement by way of consent orders filed in the Family Court of Western Australia or by way of a binding financial agreement.

There are pros and cons of both methods. If parties cannot agree as to the division of their property upon separation one or both parties will apply to the Family Court of Western Australia for orders dividing the property for them.

The Court will consider the existing property of the relationship, the various contributions parties made to the property of the relationship, the respective needs of the parties and the justice and equity of each particular case.

Who do children live with after separation?

In Australia, children are entitled, in the absence of family violence or child abuse, to the benefit of both of their parents having a meaningful involvement in their lives, to know and be cared for by both of their parents, to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development.

Can I move interstate with our children after separation?

You should not move interstate after separation without the prior written consent of the other parent or prior order of the Family Court of Western Australia. If you move without a court order or without the consent of the other parent, the Family Court of Western Australia may require you to return with the child/ren until the case has reached an outcome.

How can I prevent my child from being removed from Australia without my consent?

If the child does not have a passport you can make a Child Alert Request to the Australian Passport Office to prevent a person from fraudulently obtaining a passport for your child. This will only last 12 months and you must ensure that your contact details with DFAT are kept up to date while the child stop alert is in place.

If your child already has a passport, you can apply urgently to the Family Court of Western Australia for your child to be placed on the family law watch list. This is an airport watch list system operated by the Australian Federal Police (AFP) and is designed to prevent children from being removed from Australia without the consent of the other parent or court.

If there is a real risk of your child being removed from Australia without your consent you must obtain legal advice from a lawyer experienced in the area of family law as a priority.

Retail & Commercial Leases in WA

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Should my lawyer prepare a commercial lease?

Your lease is likely to represent one of the most important aspects of your business. The quality of the lease is intrinsically related to the value of your property and/or business.

It is important to seek quality legal advice from a lawyer experienced in commercial matters before entering into a lease and that you understand your rights, liabilities and obligations.

Can ChatGPT write my lease for me?

While it may be tempting to use a tool like ChatGPT to draft your commercial lease for you, ChatGPT is not specifically trained on the intricate legal statutes and specific regional regulations of Western Australia, nor is it equipped to interpret and apply local real estate laws that are critical for such legal documents.

Given that ChatGPT is prone to “hallucinations”—where information is made up or outright falsified—it’s ill-advised to trust ChatGPT to accurately interpret or apply legal standards without verification from qualified professionals.

This applies even when using some of the best ChatGPT prompts for lawyers. Although these can minimise errors, errors can still be present. Part of the issue is that without the scrutiny of a legal expert to check the final draft, you may not even realise when an error or oversight occurs, which could have significant legal implications.

In summary: if the legal integrity of your documents is important to you, then engaging a qualified legal expert to review and approve them is essential.

What should be included in a commercial lease?

In theory, everything is negotiable when it comes to commercial leases. Rent, term of the lease, options to renew, payment of operating expenses, rent-free periods, insurance obligations, redevelopment and relocation and fit-outs can be negotiated, and many special provisions can also be included, such as ongoing maintenance and repair costs and rights to use, common areas and car parking facilities.

What is the difference between a retail shop lease and a commercial lease?

A lease is a contractual arrangement between a tenant (lessee) and a landowner (lessor) regarding the use of a property. A commercial lease is an agreement for the leasing of commercial property with a specific business purpose, such as office areas, warehouses, or industrial sites.

Compared to other forms of leases, commercial leases tend to offer less legal protection as the law assumes businesses and business people are more knowledgeable than consumers and laypeople and can make informed decisions that are in their best interests.

A retail lease is a type of commercial lease used for leasing retail shop businesses. Retail shop leases attract additional legislative protections for consumers in accordance with the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA).

Who pays the costs of a commercial lease?

In Western Australia, this can be negotiated. In years gone by, it was common for the lessee to bear all the costs of preparing the lease, including its own costs and the costs of the landlord. For reasons likely to be related to the downturn in the Western Australian property market, it is not uncommon for parties to now pay their own costs when it comes to preparing a commercial lease. 

Who pays for the cost of a retail shop’s lease?

Section 14B of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) provides that the tenant is not required to pay certain legal fees and other expenses of the landlord.

These fees include the Landlord’s legal costs in respect of the preparation, negotiation and execution of the lease, a renewal or an extension of the lease, obtaining any consents that may be required and in the Landlord’s compliance with the Act.

Can I terminate a commercial lease early?

If you try to break a lease early, there can be very serious legal consequences. If you intend to terminate a lease early, whether you are the landlord or tenant, you should first obtain legal advice from a lawyer with some experience in commercial matters.

As a starting point, you should review the lease carefully to see whether there is an early termination clause. Other options may include negotiating an early termination with the other party, assigning the lease or subletting part of the property.

What is a surrender of a lease?

A surrender of a lease is a legal document signed by all parties to a lease once they have reached an agreement to end a lease before the end date. It should set out the key agreements between the parties and ensure that neither party has any further legal responsibilities or obligations under the lease.

What is an assignment of a lease?

An assignment of lease is a legal document used to transfer the rights of an existing lessee to another party. It is commonly signed upon the sale of a business, whereby the purchaser takes on the lease of the property in place of the seller.

What happens when a tenant breaches a commercial lease?

It depends on the nature of the breach and the actual provisions of the lease itself. If the breach goes to the heart of the lease, such as failing to pay rent, the landlord may terminate the lease and sue the tenant for damages.

If the breach is less serious, for example, the tenant has erected signage on the property that has not been approved, the lease will remain on foot and the landlord may sue the tenant for damages only.

What happens if a tenant ends a commercial lease early?

If a tenant ends a commercial lease early, the landlord may likely sue the tenant for damages, including payment of all rent that should have been paid by the actual end date of the lease.

Tenants would be wise to obtain advice from a lawyer experienced in commercial matters before ending a lease early to mitigate the losses.

Unfair Dismissal in Western Australia: Everything You Need To Know

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What is unfair dismissal?

Unfair dismissal occurs when an employee is dismissed from his or her employment in a harsh, unjust or unreasonable manner.

What would constitute an unfair dismissal in Western Australia?

A dismissal will be seen to be unfair if it is deemed harsh, unjust or unreasonable in circumstances where there is no valid reason for the dismissal. A valid reason for dismissal may relate to an employee’s conduct, capacity or performance.

The reason must be sound and well-founded, not fickle, fanciful or prejudiced. Examples of dismissals that may be deemed unfair include If your employer suddenly fires you and does not tell you the reason for the dismissal or where you were fired for a reason that had nothing to do with your performance or conduct on the job and was not a genuine redundancy.

What should I do if my employment has been unfairly terminated?

To make an unfair dismissal complaint to the Fair Work Commission, you must have: (1) worked for your employer for at least 6 months (or 12 months if they are a small business (ie have fewer than 15 employees); earned less than the high-income threshold (currently $138,900 a year); or be covered by a modern award or an enterprise agreement. Your application must be lodged within 21 days of the day you were fired and time is of the essence.

Can I terminate an employee for poor performance?

Under unfair dismissal laws in Australia, an employer cannot dismiss an employee unless they have a valid reason connected with the employee’s conduct, capacity or because of a genuine redundancy.

In addition, if the dismissal is related to conduct, capacity or poor performance, it may still be unfair if the employee is not notified of the reason for their dismissal, is not given an adequate opportunity to respond to those reasons, and is not provided with a warning in certain circumstances, not allowed a support person to assist them in discussions about the meeting or if the dismissal was otherwise procedurally unfair.

Restraining Orders in WA: Everything You Need To Know

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What is a family violence restraining order?

A family violence restraining order is an order of the Magistrates Court of Western Australia designed to prevent the occurrence of family violence by making it unlawful for a family member to do certain things that may otherwise be lawful.

For example, a family violence restraining order may restrain a family member from approaching within a certain distance of the protected person, attending his or her work or place of residence, communicating with the protected person or stalking the protected person.

What is a violence restraining order?

A violence restraining order is an order of the Magistrates Court of Western Australia designed to prevent the occurrence of personal violence or exposing a child to personal violence.

A restraining order makes it illegal for the person to approach you or your property or use other people to contact you or to try other means of contact such as SMS, mail or email.

What is a misconduct restraining order?

A misconduct restraining order is an order of the Magistrates Court of Western Australia making it unlawful for a person (not being a family member) to do certain things in order to try and stop them from continuing their disruptive, offensive, destructive or otherwise poor behaviour.

Do I need a restraining order?

You should consider applying for a restraining order made by a Magistrate of the Magistrates Court if you require protection from someone who commits family violence or personal violence against you, threatens you or your property harasses or intimidates you and you are concerned that the behaviour will continue in the future.

How do I apply for a restraining order?

You can attend your local Magistrates Court and complete and file an application for a particular restraining order. There is no fee involved in filing the application. Most applications are dealt with within 24 hours and in the absence of the respondent.  

Should I object to a restraining order becoming final?

Advice depends on the circumstances of each particular case. There may be other more appropriate options than a restraining order and, in those circumstances, it may be wise to object to the order becoming final. 

Should I get legal advice if I receive a restraining order?

Yes. Restraining orders are very serious matters and consequences for failing to comply with orders are severe.

Do I need legal advice to apply for a restraining order?

You do not need legal advice to apply for a restraining order but it is advisable to obtain legal advice as, depending on your particular circumstances, there may be other more preferable options.

How do I apply for a restraining order? You can attend your local Magistrates Court and complete and file an application for a particular restraining order. There is no fee involved in filing the application. Most applications are dealt with within 24 hours and in the absence of the respondent.

What is a Will? Everything You Need to Know

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What is a will?

A will (also known as a testament) is a legal document that expresses a person’s wishes as to how their property (or estate) is to be distributed after their death and as to which person is to manage the property until its final distribution.

Wills and estate planning lawyers are typically hired to create wills, as these are legal documents in the eyes of the law.

Do I need a will?

In short, yes. Your will is an incredibly important legal document that stipulates who is to receive your assets upon your death. Not having a clearly defined will can significantly increase the chance of will disputes. Learn what happens if you die without a will in Western Australia.

When is a will invalid?

There are many instances in which a will may be invalid. It may not have been executed correctly. For example, the will-maker may not have signed the will or signed it in the presence of two adult witnesses. This may or may not prove fatal to the will.

It may be established that the will-maker did not have capacity at the time he or she signed the will or that the will-maker had not read and approved the contents of the will prior to its execution. The will may have been created by fraud or unconscionable conduct. It may have been statutorily revoked by marriage or divorce. Alternatively, it may simply have been superseded by a later will.

What happens to my assets if I die without a will?

If you die without a will you are said to have died intestate. If you die without leaving a valid will in Western Australia, your estate will be distributed in accordance with the provisions of a statutory will which is set out in section 14 of the Administration Act 1903 (WA).

When should I write a will?

In Western Australia, anyone over 18 can write a will. It is never too early to write a will.

Should I instruct a lawyer to prepare my will?

In short, yes. Wills are complex documents and if you make a mistake it may invalidate your will.

How much does a lawyer charge to prepare a will?

In most instances, a lawyer will charge somewhere in the vicinity of $300 to $1,000 plus GST to prepare a standard will. A standard will would be one leaving assets to a spouse and then to children. If your financial affairs are more complicated then the fee is likely to be higher.

Can I write my own will?

Yes, you can write your own will and there are many products online including will kits that you can download to assist you in preparing a will.

That being said, it would always be prudent to use the services of an experienced succession lawyer to prepare your will particularly if you have significant assets and/or a family where it is important that your testamentary wishes are actually carried into effect upon your death.

What is an executor?

An executor is a person nominated by the will-maker to carry out the will maker’s testamentary wishes.

What is the role of an executor?

The executor is responsible for the funeral arrangements, locating the original will, gathering up the assets, paying any debts and distributing the estate in accordance with the terms of the will.

The executor is also responsible for preparing and lodging individual and estate tax returns and obtaining a tax clearance from the Australian Taxation Office.

Who can witness a will?

A will must be signed in the presence of two adult witnesses who should each state their full name, address and occupation on the signing page. In Western Australia a person who is unable to see and attest that the will-maker has signed a document cannot act as a witness to a will.

It is good practice that the witnesses are independent from the will-maker. For example, beneficiaries, potential beneficiaries and relatives should not act as witnesses to the will. 

How many witnesses do I need when I sign my will?

In Western Australia a valid will requires the will maker to make or acknowledge his or her signature on the will in the presence of at least 2 adult witnesses present at the same time who then sign the will in the will maker’s presence.

Can a spouse witness me sign a will?

A spouse should not act as a witness to your will.

Can I appoint a guardian for my children in my will?

In Western Australia a person may, by his or her will, appoint a guardian of any infant child or children of the person.

What is a grant of probate?

A grant of probate is an order of the Supreme Court of Western Australia certifying the validity of the last will of a deceased person and acts as the formal authority for the executor named in the will to deal with the administration of the estate. 

What is a grant of letters of administration?

A grant of letters of administration is an order of the Supreme Court of Western Australia formally authorising a person over the age of 18 to deal with the administration of the deceased estate of a person who died intestate (without a will).