Contentious Probate

Probate is the legal process by which a deceased person's will is validated and their assets are distributed. In Western Australia, this process can become contentious when disputes arise over the validity of the will, the distribution of assets, or the appointment of an executor.

Rise in Probate Disputes

There has been a significant increase in disputes not only regarding the distribution of assets but also concerning who should be in control of the estate. When someone dies with a valid will, an executor is appointed to manage the estate's affairs. However, if the will is contested or if there is no will, the process becomes more complex.

Probate Application Process

To administer an estate, the executor must apply to the Supreme Court of Western Australia for a grant of Probate. If there is no will or the named executor is unable or unwilling to act, the court issues Letters of Administration instead. Non-contentious applications are typically handled by a Registrar without a court hearing, while contentious cases may require civil proceedings.

Contentious vs. Non-Contentious Jurisdiction

The Supreme Court has two probate jurisdictions: non-contentious and contentious. Non-contentious matters are resolved 'on the papers' by a Registrar, while contentious matters involve disputes over the executorship or the will's validity and are handled by the court.

Grounds for Contesting a Will

There are several grounds for disputing a will, including its validity, whether it meets formal requirements, or if it is suspected of being fraudulent. Additionally, claims can be made under the Family Provision Act 1972 (WA) by eligible individuals who feel they have not been adequately provided for.

Time Limits and Eligibility

Eligible claimants, such as spouses, children, or dependents, have six months from the date of probate to contest a will. The court considers various factors, including the claimant's needs and the estate's size, when deciding on a claim.

Legal Implications and Costs

The legal fees for contesting a will can be substantial, and the court ultimately decides who bears these costs, which may come out of the estate. Executors have a fiduciary duty to act in the best interest of the estate and can be removed by the court if they breach this duty.

Use of Caveats

A Probate caveat can be lodged to prevent the issuance of a Grant, moving the matter into the contentious jurisdiction. Caveats are effective for six months, and the applicant must act within one month to address the caveat.

Contentious probate in Western Australia involves complex legal proceedings that arise when there are disputes over a deceased person's will or the administration of their estate. The process is governed by specific laws and requires careful navigation to ensure that the deceased's wishes are honoured and that eligible claimants receive fair treatment. Executors play a crucial role in this process and must adhere to their fiduciary duties to avoid legal challenges. Given the emotional and financial toll these disputes can take, it is advisable for individuals involved in contentious probate matters to seek legal advice and representation.

Recommendations

• Executors should be aware of their responsibilities and the potential for legal challenges if they fail to fulfil their fiduciary duties.
• Eligible claimants considering contesting a will should be mindful of the time limits and the potential costs involved in such legal proceedings.