They think they have not received a fair share of a close relative's property after a death. What can theydo?
A dependant of someone who has died who thinks they have not received a fair share of the deceased's property under the will- may be able to challenge it. They should get legal advice before starting a challenge at court.
When will the court interfere with the way a person leaves their property in a will or with the distribution under the Act?
The Supreme Court will not usually interfere with the way a person leaves property in a will.
However, it can interfere if it thinks the will does not properly look after the needs of a person the deceased had a duty to provide for.
A lawyer can prepare the documents and make the application to a judge of the Supreme Court.
* They will have to prove: their relationship to the deceased
- * why they believe they are entitled to a share or a larger share
- * why they believe the will does not provide well enough for them.
To apply to the Supreme Court of WA to alter a will they must be one of the following:
- * a person who was married to the deceased
- * a person living as the de facto partner of the deceased
- * a former spouse or de facto partner who was receiving, or entitled to receive, maintenance payments
- *a child of the person living at the time of the deceased's death
- * a grandchild of the deceased: who at the time of death of the deceased was being wholly or partly maintained by the deceased
- * a parent of the deceased.
*Western Australian law recognises: same-sex de facto relationships
What happens after an application is lodged?
The court will fix a time to hear their application.
In most cases the judge makes a decision based on the contents of the sworn or affirmed documents prepared before the hearing. Usually they will not have to go to court to give evidence.
The court will take a number of things into account, including:
- how any change will affect other people in the will
- the sort of property involved and its value
- the ages of the surviving dependants
- the relationship to the deceased of other dependants
- the needs of other dependants
- the way they acted towards the deceased and their relationship in general.
It is for the court to decide whether or not it will interfere.
Applications are not always granted, sometimes they may be refused.
What if I am affected by a court application?
If the court orders that someone should receive a share or a larger share of the deceased’s property then someone else will have to receive less.
If an application is made to the court, a summons and a copy of the documents filed will usually be given to each person whose rights will be affected.
If you receive a summons and do not wish the court to interfere with the distribution of the property, you will need to file a document called an “Appearance” at the court. If you do not file an appearance the court will make a decision in your absence.