Legal Information Sheet - Wills and Probate - Family Provision (challenging a will), Administering an Estate, Intestacy (dying without a valid will), and Signing Requirements

Wills and probate are an extensive area of law, and one which can have dramatic impact upon individuals and families. It is important to get professional succession advice regardless of the size of your estate.

It is particularly important to have a will particularly if you have children, are married, own a house or have substantial assets.

    You can prepare your own will, however it rarely caters for changing circumstances – for example, what if none of your executors (the people you nominate to carry out your will) are alive or able to act, or what if all your beneficiaries (the people you want to give your assets to) are not alive? What if you die at the same time as my partner, or what if you become bankrupt or remarry? (Important because marriage revokes any will already made).

    In come cases, other documents can be considered in interpreting a will, however these can sometimes be hard to locate.

    A simple will can cost as little as $150.

    Dying Intestate (without a valid will)

    Contrary to some conjecture, if you don’t have a will, your assets will not just go to the government – the rules of intestacy govern who your beneficiaries will be, but a will is the only way to ensure your wishes are carried out after you’re gone.

    If you die intestate, a person (generally a close family member) can apply to the Supreme Court of Western Australia for a grant of 'Letters of Administration' to the applicant. The grant then authorises that person to collect the assets of the deceased and distribute them according to Western Australian intestacy laws.

    The rules of instestacy provide that your possessions (at least, those that are not gifted in a will) will be distributed in the following order of preference as detailed below. The rules refer to both spouses and de facto partners (including same sex partners):

    • a surviving husband or wife (and a portion to children, and/or parents and siblings if appropriate, and if the estate exceeds a certain amount)
    • children
    • parents (and a portion to siblings if appropriate, and if the estate exceeds a certain amount)
    • siblings (and sibling's children if siblings have passed)
    • grandparent
    • uncles and aunts (and children of uncles and aunts if uncles and aunts have passed)
    • the Crown (Government)

    Family Provision (challenging a will) 

    The concept of Family Provision, as per theFamily Provision Act 1972, allows - in fact requries - a Court to make a Family Provision order from the estate of a deceased person to the applicant for the adequate provision of the proper maintenance, education or advancement in life of an 'eligible person' (in the event that person has not been sufficiently provided for in the will).

    You are considered an eligible person to make a claim for provision from the deceased person’s estate if you fall in one of the following categories: Spouses and de facto spouses; Former spouses maintained by the deceased; Children, including unborn children; Grandchildren maintained by the deceased or whose parent died before the deceased; Parents; and stepchildren.

    In determining what adequate and proper maintenance is for an applicant of a Family Provision Order, the Court may have regard to the following:

    • The relationship between the applicant and deceased person, including the nature and duration of the relationship;
    • The nature and extent of any obligations or responsibilities owed by the deceased person to the applicant;
    • The nature and extent of the deceased persons estate and of any liabilities or charges to which the estate is subject;
    • The financial resources (including earning capacity and financial needs, both present and future of the applicant;
    • The financial circumstances of the person the applicant is cohabiting with;
    • Any physical, intellectual or mental disability of the applicant;
    • The age of the applicant;
    • Any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased persons family for which adequate consideration was not received;
    • Any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased persons estate;
    • Any evidence of the Will makers intentions;
    • Whether the Applicant was being maintained by the deceased person;
    • Whether any other person is liable to support the applicant;
    • The character and conduct of the applicant before and after the date of death of the deceased person;
    • Any relevant Aboriginal or Torres Strait Islander customary law;
    • Any other matter the Court considers relevant.

       Guardianship of Children

    When deciding on a guardian for any children you may have, which is normally included in a will, you can choose a single or joint guardian. A special case arises in WA if you wish to appoint the other parent of the child(ren) as a guardian jointly with another person.

    Section 61C(1) and 69ZH(2)(b) of Family Law Act 1975 (Cth)provides that, if there is no guardian appointed in your will, guardianship rests in surviving parent (in WA, if at some time the parents were married), and any dispute after your death as to guardians is decided by Family Court. 

    However, in WA, as opposed to all other states, s 71 Family Court Act 1997 (WA) provides that a joint guardianship can be appointed only if at the time of your death you have sole 'parental responsibility' for the children. (you then need to assess what constitutes 'parental responsibility'. If you do have sole responsibility, guardianship can be joint with the surviving parent, and no application to Court is necessary. If not, you need to discuss with the other parent before specifying guardianship.

    Administering an Estate

    You will need to provide to us the following, which we can assist you in collating:

    • the original will
    • the deceased's original death certificate
    • a statement of the deceased’s assets and liabilities at the date of their death and whether those assets and liabilities are within or outside Western Australia (including real estate, car/s and/or boats/caravans/other vehicles [including make and registration], money, bank accounts [including account details], furniture, household appliances, jewellery, shares and other investments, insurance policies, and superannuation). There may be a requirement to get some items valued.
    • the full names and current residential addresses of the will’s witnesses and
    • if the first executor is dead, and you’re applying for probate as the substitute executor: the date of the first executor’s death and a copy of their death certificate.
    • information as to whether the deceased married or divorced after the last will was made.

    We will submit the following to the Supreme Court to enable a Grant of Probate:

    • a motion for probate (this can be done after 14 days has elapsed from the death of the testator). If there are very few assets owned by the testator, probate may not be necessary.
    • an affidavit
    • the statement of the deceased’s assets and liabilities
    • the original will
    • the deceased’s death certificate – the original and a copy and
    • the filing fee (at July 2016, $338).

    It takes the Court approximately eight weeks to process an application for probate. Once this is done, we will:

    • pay the deceased’s expenses and debts in the following order (including opening a bank account in the name of the estate and depositing money into it): funeral expenses. administration expenses [e.g. legal costs], outstanding tax [including income tax and capital gains tax], and other debts.
    • distribute assets as per the will (after 6 months after death of the testator and after publishing a notice advising anyone who may have an interest in the estate), and provide a 'distribution report' to each beneficiary.
    • (if necessary) arranging tax returns for the deceased and the estate, claim life insurance, deal with legal challenges.

    Signing Requirements

    A will need not be signed be a solicitor or JP, as the testator's signature can be witnessed by any adult. It must be signed by two witnesses who have witnessed you signing the will. It is not necessary that they even know that what you are signing is a will. 

    It is good practice that the witnesses are not beneficiaries under the will, however this is not essential for the will to be valid.

    In the interests of clarity, there are other things to consider sometimes in signing a will e.g. whether you and witnesses should initial each page (sometimes may be prudent) and whether your signature must be in the same form as your name in the will (generally required).

    For further information about any of these matters, please contact Springdale Legal.