LAWYER HELPLINE: ☎ 1800 455 886

If you would like detailed information on matters relating to challenging or disputing a will or contesting probate or objection to the administration of a will, our Perth contested probate solicitors offer free advice on estate litigation over the telephone without further obligation. Most Australian citizens will leave assets at the time of their death and how those assets are distributed depends to a large extent on whether or not the deceased person has left a valid will. In the event that a will exists then the assets will usually be distributed according to the wishes of the deceased as outlined in the will following issue of a grant of probate to an executor named in the will. A grant of probate authorises the executor named in the will to deal with the assets of the estate. There are however many instances where disputes arise between potential beneficiaries relating to the validity of the will or relating to inadequate provision for those who may expect an inheritance from the estate particularly those who consider themselves to be dependent on the deceased person.

Grant of Representation

In the event that the deceased did not make a will, all assets are distributed in accordance with legislative guidelines known as the intestacy rules, which prioritise family relationships, following the issue of a grant of letters of administration to the proposed administrator who is usually a person with a financial interest in the estate. A grant of letters of administration gives legal authority to an administrator to deal with the assets of the estate. Our Perth contested probate solicitors offer advice on challenging both grants of probate and letters of administration and will represent potential claimants in anticipated estate litigation. In the event that the validity of a will is successfully challenged then a previous will may take precedence or the intestacy rules may apply which in either case may be more beneficial to the applicant than reliance on the successfully challenged will.

Undue Influence

Persuading a Will maker to leave you an inheritance isn't an unlawful act as such. The court will only overturn a Will on the grounds of 'undue influence'. Undue influence is said to occur when a Will maker is coerced to such an extent, that the resulting Will is quite different to the Will-maker's real intentions.

Undue influence can be difficult to prove unless there were witnesses present when it occurred. A person claiming that undue influence was involved bears the onus of proof; they must prove this fact with supporting evidence. Undue influence is not a claim that should be brought lightly.

Fraud

Fraud is another ground upon which a Will can be declared invalid. Like undue influence, fraud is often a difficult case to prove. Most fraud cases involve a fake Will, or a Will upon which the testator's signature has been forged. Hand-writing experts are often needed to prove forged signatures.

If you suspect that a Will is fraudulent or that the Will maker has been forced or coerced into changing their Will by someone who stands to gain from the changes, you should seek legal advice. Our legal team can provide legal advice on what to do if you suspect that fraud or undue influence has resulted in you missing out on your fair share of inheritance. Call our helpline or complete the contact form for further information and advice.

Testamentary Capacity

For a Will to be valid, not only does it need to comply with legislative requirements as to the way it is drawn up and witnessed, the will maker must also have 'testamentary capacity' at the time that that they make their Will. They must be of sound mind, memory and understanding. There are several medical conditions which can affect a person's capacity to make a Will such as severe mental illness. However, if a person has a lucid interval, they may have sufficient mental capacity to make a Will. Where there are any concerns about a Will maker's testamentary capacity, it is essential that medical evidence is sought at the time of making or executing the Will, to prove the Will maker understands the nature and effect of the Will.

Unfair Will

If you feel that you have been cheated out of your inheritance, it may be possible to take legal action. The Inheritance (Family and Dependants Provision) Act entitles certain categories of people to claim if a Will fails to make "adequate and proper provision for them". This includes children of the deceased, the deceased's spouse and those who were dependent on the deceased.

In order for your claim to succeed, you will have to show that you have been left without adequate provision for your “proper maintenance, support, education or advancement in life” and that it would have been proper for the testator to make provision for you.

If you would like further information on how to challenge an unfair Will, contact our legal service without delay, as time limits apply.

Valid Will

The first matter that a Perth contested probate solicitor will deal with following the death of the testator is to check whether or not the will that has been produced is valid or is capable of being challenged or disputed in a court of law. The validity of a will depends on proper drafting and execution by the person making the will (testator). If a will fails on validity then either an earlier will takes precedence or where there is no will the distribution of assets is determined by the intestacy rules. In order for a will to be valid, to avoid the prospect of estate litigation, it must usually satisfy the following basic requirements :-

• the will must be in writing and signed by the testator
• the testator must have the mental capacity to make a will
• the will must be witnessed in accordance with the law

Executors Duties

The duties of an executor or administrator may be onerous and include identifying, valuing and securing all assets. Paying all of the liabilities of the estate and subsequently distributing the assets in accordance with the will or in accordance with the intestacy rule in cases where there is no will. The duties of an executor or administrator are considered to be a personal liability in the event that any beneficiaries are not satisfied with the way in which the estate is handled and can result in personal legal action against the administrator or executor. Except in the case of very simple estates it is advisable for executors or administrators to seek the services of a lawyer to deal with all legal matters thereby effectively removing any potential for personal liability attaching to an inexperienced executor or administrator. In the event that an executor or administrator is not behaving properly our Perth contested probate solicitors can take legal action in a court of law to remove them from their position and claim financial recompense for any losses that the estate has suffered.

The executor's duty is to take charge of the testator's property, pay the funeral and administration expenses, debts and taxes, and to distribute the assets to the beneficiaries in accordance with the Will. Often there is more than one executor named in the Will. Sometimes conflicts arise between executors and legal advice is needed to resolve such disputes.

Executors must act in good faith when administering the estate. If, as a beneficiary, you feel that the executor/s have failed in their duty, and this has resulted in you missing out on your inheritance, you should seek legal advice. Just call our free helpline and speak with a member of our legal team. They will explain to you your legal rights and options.

Contested Wills

Our Perth Contested probate solicitors deal with disputed probate, challenging wills and disputed administration. Our solicitors can advise on challenging a will or defending a challenge on behalf of executors and administrators. Most wills are valid however a large percentage of home made (DIY do it yourself) wills fail to be executed properly in which case they are deemed to be invalid ensuring that either an earlier will takes precedence or that the intestacy rules will apply. Our Perth contested probate solicitors also deal with applications by dependents for financial provision from an estate prior to distribution to the other beneficiaries.

WA Western Australia Probate Office

The probate office for Western Australia is situated at:-

Probate Office
Supreme Court of Western Australia
Level 14
111 St Georges Terrace
Perth
Western Australia
WA 6000

All births, marriages and deaths in Western Australia are on record at :-

Western Australia Registry of Births Deaths & Marriages
10/141 St Georges Terrace
Perth
Western Australia
WA 6000

There are many cases where a will is challenged or contested by a disputed probate solicitor in a court of law. There are numerous reasons why a will or probate may become contentious, the most common of which relates to the validity of the will which must comply with the following statutory rules:-

• the person making the will (testator) must be over at least 18 years old
• the will must be in writing
• the will must be signed by the testator
• the will must be witnessed and signed by two others present at the same time with the testator
• the document must have been executed with the testators free will
• there must have been no undue influence to obtain signature
• a beneficiary should not be a witness or they lose their inheritance

Lawyers Legal Advice

If you would like advice from a Perth contested probate lawyer just call the helpline or email our solicitors offices. We offer free advice with no further obligation on challenging wills, contesting grant of probate and grant of letters of administration and applications for financial assistance by dependents.

Perth Will Dispute Lawyers are experts at challenging unfair Wills. Whether you have been left out of a Will or have been left an unfair share of inheritance, you should seek legal advice from a lawyer who will competently assess your potential claim and take action on your behalf to obtain your full entitlements.

Our solicitors have represented parents, children, de facto relationships and same-sex couples in all types of estate litigation matters throughout Western Australia. Free legal advice in relation to Will Challenges and Probate Disputes is available through our website. If you’re unhappy about how a Will is being administered and wish to protect your inheritance, call our free legal advice line or complete the on-line contact form. Should you wish to retain the services of one of our specialist solicitors, you may be eligible for No Win No Fee legal representation.

Do not delay in seeking legal advice, as time limits apply in all Will Dispute matters.

HELPLINE: ☎ 1800 455 886