Will Validity Disputes in Western Australia (WA)

Why would someone contest a will’s validity in Western Australia?

In another blog post on will disputes, we discussed how Wills can be contested in Western Australia under the Family Provision Act 1972 (WA).

It is also important to understand that Wills can also be disputed in terms of their validity.

The legal principles which surround contesting the validity of a Will can be difficult to understand. Below we summarise some of these principles to assist with that understanding. Note, when referring to someone who has died and left a will we refer to them as the ‘testator’.

Generally speaking, a will won’t be admitted to Probate unless:

  1. it is duly executed, meaning:
    1. that it is in writing;
    2. the testator (or some other person in accordance with section 8 of the Wills Act 1970 (WA)); signs the will in the presence of at least 2 witnesses present at the same time; and
    3. the testator (or some other person in accordance with section 8 of the Wills Act 1970 (WA)); signs the will in the presence of at least 2 witnesses present at the same time; and
    4. the witnesses attest and subscribe the will in the presence of the testator.
  2. the testator had testamentary capacity (sometimes referred to as ‘sound mind, memory and understanding).

    The question of whether a testator had testamentary capacity is a legal question, not a medical one (although medical evidence is frequently tendered to assist the court to make a determination).

    The test for whether or not a person has testamentary capacity was established by Cockburn C J in Banks v Goodfellow (1870) LR 5 QB 549 as being the ability of the testator to:
    1. understand the nature of the act of making a will and its effects;
    2. to understand the extent of the property the subject of the will;
    3. to understand competing claims on his or her bounty, and to weigh those claims;
    4. not be afflicted by ‘disorders of the mind’.
  3. the testator knew and approved of its contents;

    This is primarily concerned with the intention of the testator to make the particular instrument concerned as his or her will. It is sufficient that a testator knows that the document is his or her will and correctly assumes how it deals with his or her property (Dal Pont and Mackie, Law of Succession (2nd ed), paragraph [2.27], cited with approval by Justice Lindsay, ‘the “Why?” and “What?” of “Suspicious Circumstances” in Probate Litigation’ (Conference Paper, the Law Society of South Australia Succession Conference, 16 November 2018).

    If a will is duly executed and the testator had testamentary capacity, then there is a presumption that the testator knew and approved the terms of the will at the time of execution.

A person seeking to disprove a will may claim that the testator did not have testamentary capacity or that he or she lacked knowledge of the terms of the will and the ability to approval the will.

In addition to claims of a lack of testamentary capacity or knowledge and approval, there may be other arguments available to those seeking to invalidate a will, including:

  1. Undue Influence

    Undue Influence in probate litigation means that the testator has been actually coerced into doing what he or she did not desire to do (Tobin v Ezekiel [2012] NSECA 285; 83 NSWLR 757 at [49]). Actual undue influence must be proved. That is proof of actual coercive conduct which vitiates the free will of the testator, as opposed to undue influence found in the equity jurisdiction.  

    Undue Influence is a serious allegation and ought not be raised except on very good grounds (Mortimer on Probate (1911)).

  2. Fraud

    In comparison to undue influence, where the testator is ‘coerced’, fraud is said to ‘mislead’ the testator. In Lindsay’s J article cited above, he provided the following description:

“As recognised in [Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136 at [65]-[66]] an example of conduct capable of constituting fraud is misleading or deceptive conduct involving wilfully false statements, or the is misleading or deceptive conduct involving wilfully false statements, or the suppression of material facts, intended either to gain for oneself benefits under a will or to prevent benefits being received by a natural object of the testator’s bounty.”

The above is merely a short summary of complex principles that have a long history of legal argument. No two cases are ever the same, so if you have queries about any of the above matters then you should obtain legal advice. 

How long do I have to raise a validity dispute over a Will Western Australia?

Unlike the Family Provision Act 1972 (WA) there is no statutory time limit imposed on raising a dispute over a will’s validity. However one should be mindful to take legal advice as soon as possible if you believe a will may be invalid. The advice and path forward will depend upon the facts of each case, for example whether or not probate has been granted of the will yet.

Who can challenge a will’s validity in Western Australia?

There is not a list of ‘eligible persons’ who can contest a will’s validity (as opposed to those entitled to make a claim for further provision of an estate under the Family Provision Act 1972 (WA)).  

However, when considering whether one should contest the validity of a will, a person should consider the extent of evidence they have (or is available to them) to prove that a will is invalid and whether there is a cost benefit to them in litigating that factor.

For example, if you were a beneficiary under the terms of a previous will and are concerned that a beneficiary of a newer will has procured the drafting and execution of that will then you may want to consider obtaining legal advice to discuss whether contesting the will’s validity would be beneficial on a cost benefit analysis.

Is it expensive to dispute a will’s validity in Western Australia?

It can be. This area of law is complex.

Litigants and potential litigants will benefit from obtaining advice from an experienced succession lawyer as early as possible after the death of the testator.

The experienced family lawyers at HFM Legal regularly advise clients with respect to will disputes and assist clients with all other aspects regarding wills and estate planning and will disputes.

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

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.