When someone dies, often one of the first things to happen is to establish whether or not the deceased left a will. If they did, the person named as the executor would generally apply for a grant of probate and, on receiving it, would facilitate the distribution of assets according to the wishes of the deceased.
While the law recognises, and generally respects, a person’s right to choose how they distribute their estate, the Court can step in if it thinks the will (or the distribution under the Administration Act 1903 (WA) (Act) in the event that the deceased does not leave a will) does not adequately provide for the proper maintenance, support, education or advancement in life of a person whom the deceased had a moral duty to provide for.
If you are a:
- spouse or de-facto of someone who has died;
- former spouse or de-facto receiving or entitled to receive maintenance from a deceased;
- child of a deceased;
- grand-child of a deceased;
- step-child of a deceased; or
- parent of a deceased,
and you believe that you have not been adequately provided for under the deceased’s will or under the Act (if the deceased died without a will), you may be able to challenge the will or your entitlement under the Act, under the Family Provision Act 1972 (WA).
Some cases require litigation in the Supreme Court while others are resolved by mediation or agreement between the parties.
There is a time limit of 6 months from the date of a grant of probate or letters of administration by which you can make an application under the Family Provision Act 1972 (WA). So, you should obtain legal advice immediately after the deceased’s death if you wish to make an application for provision from a deceased’s estate.
If you believe you have not been adequately provided for under a will or the Act or you have been left out of a will, we can help! Contact us on (08) 9228 2881.
