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INHERITANCE CLAIM
Do you believe a will is unfair?
If so, you may have a claim against the estate of a deceased person. Even if there is no will, you may well have a claim.
Our legal fees are reasonable. Plans are available to delay the payment of some or all legal fees until the final resolution of the dispute.
David Lang will manage your case. For information on David click here.
In broad terms there are three bases upon which you can challenge a will.
- You were not adequately recognised
- Diminished legal capacity
- Undue influence from others
The first and most common reason is that you were not recognised, or not adequately recognised, by a loved one, or someone who had a duty to make adequate provision for you.
If you are a child, parent, spouse or de facto partner of the deceased, a former partner entitled to receive maintenance, or in some circumstances a grandchild, you may have the right to make a claim against the deceased's estate. The list of possible claimants is not exhaustive. We recommend that take legal advice if you want to be sure about your right to claim. We have extensive knowledge in the area of inheritance claims, succession law wills and deceased estates.
The Family Provision Act 1972 in force in WA gives the Court power to vary a will if it finds that the deceased has not made adequate provision from his or her estate for your proper maintenance, support, education or advancement in life.
Whether adequate provision had been made is assessed by reference to the size of the estate, the need and moral claim of the applicant and the need and moral claim of other persons who have a legitimate claim upon the bounty of the testator: Andre v Perpetual Trustees WA Ltd [2009] WASCA 14 [53]. The Court will consider the matter from the view point of what a wise and just testator would do having knowledge of the applicant's health, income and assets: Butcher v Craig [2010] WASCA 9 at [19].
What amounts to proper maintenance and support does not necessarily mean no more than satisfying basic needs. The standard of living of an applicant during the lifetime of the deceased is relevant, but the fact that an applicant has lived frugally or has become accustomed to a life of relative penury, does not mean that the testator's obligation under the Act is satisfied so long as the applicant can continue in that state: see Pogorelic v Banovich [2007] WASC 45 [62].
Time Limit
You must apply to the Court for relief within 6 months from the date Probate is granted or an Administrator is appointed, although the court has power to extend time in certain circumstances.
Diminished legal capacity/undue influence
If you believe the deceased did not have the mental capacity to make the will, or was unduly influenced by others in making the will, you may be able to obtain a court order to set aside the will. If this happens either an earlier will of the deceased will operate, or assets of the deceased will be distributed in accordance with a statutory formula set out in section 14 of the Administration Act.
For more information on emerging succession issues, click here
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