Deceased estate and probate law

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Contesting a will

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It is not necessarily the case that the property of a deceased person will be gifted as per the terms of their will – or in the case where there is no will – on intestacy according to the family tree referred to in the Administration Act (WA).

It is possible for certain classes of people (e.g. the spouse, de facto spouse, child, grandchild and/or parent of the deceased – depending on the circumstances) to challenge the contents of a will so that they recieve an inheritance from the estate or so that they increase the size of that inheritance.

An action brought pursuant to the Inheritance (Family and Dependants Provision) Act 1972 in Western Australia must be brought within 6 months of a grant of probate or letters of administration being made in the estate – unless the Supreme Court grants leave for that application to be brought out of time.

The claim itself would be made on the basis that the will and/or the law relating to intestacy “.. is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life…” of the claimant (see secton 6(1) of he Inheritance (Family and Dependents Provision) Act).

(Valid as at 31/5/12)


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Locating and receiving an original will?

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It is very important that significant efforts are made to locate the original of the last valid will of a deceased person when you are considering applying for a grant of probate or letters of administration in Western Australia or administering the estate of the deceased.

If the original will cannot be found a presumption ordinarily arises at law that the will was destroyed by the executor/executrix with the intention that it be revoked by him so that it is no longer valid¬†(“the presumption of destuction”).

In some cases it may be important to locate more than the last will of a deceased person (e.g. where the last will may be invalid or where other wills show the long term testamentary intentions of the executor/executrix say in cases where an Inheritance (Family and Dependants Provision) Act claim is to be made.

Some of the enquiries that could be made to successfully locate wills (including copy wills which themselves may be important) are with:

– the Public Trustee (WA) –¬† they have a “will bank”

– the deceased’s lawyer or lawyers in the deceased’s area

– the deceased’s accountant

– the deceased’s bank particularly where a safety deposit box is held

– the deceased’s close family and friends particularly anyone whom may have been named as the deceased’s executor

-the deceased’s home or office – searching places where important documents may have been left e.g a safe or filing cabinet or special documents folder

-by advertising to see if anyone is aware that a will has been left, including in “Brief”, the lawyers magazine

– Public Trustee companies such as Perpetual Nominees or Plan B.

Sometimes it may be clear where the original will however the holder of the will is unwilling to deliver it up. Legal advice should be obtained in these circumstances as it may be possible amongst other things to ask the court to settle a citation that a person lodge an original will at the Supreme Court Registry.

(Valid 31/5/12)


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Dealing with an unsuitable executor

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It is possible to make application to the Supreme Court of Western Australia to pass over an executor named in a will and to appoint a different legal representative of an estate or if a grant has already been made to remove an executor (e.g. see section 36 and 37 of the Administration Act).

The general guiding principles are whether that change would be in the interests of the beneficiaries and if whether it would lead to the proper and efficient administration of the estate to final distribution.

Some reasons why an executor may be passed over or removed include:

  • if they are acting in their personal interests and not in the interests of all beneficiaries of the estate e.g. by living in estate property without paying rent and failing to administer the estate in a timely manner or by receiving some other financial benefit from or through the estate they are not entitled to under the will or at law
  • they are incompetent e.g. they are mentally incapacitated
  • they are unwilling e.g. they have not obtained a grant of probate in circumstances where a grant is needed to properly administer the estate for an unreasonable period.

Significant evidence is required to succeed with these types of applications which should not be lightly commenced. Legal advice should first be obtained.

(Valid 31/5/12)


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