Finding out you’ve been left out of a will, or left far less than you expected, is a rough way to start grieving someone. In Western Australia, contesting a will almost always means making a family provision claim in the Supreme Court under the Family Provision Act 1972 (WA). You aren’t saying the will is invalid.
You’re asking the court to order more from the estate because it didn’t make adequate provision for you. There are strict time limits, a limited list of eligible people, and a court that is less moved by “this isn’t fair” than most people expect.
This guide covers the main questions, from deadlines and costs to executors and sibling disputes. It’s general information only, not legal advice.
Disclaimer: This article is general information only and is not legal advice. Laws and court practice change, so confirm the current position with a qualified WA lawyer and the sources linked above before acting. Last reviewed October 2026.
What “Contesting a Will” Actually Means in WA
Contesting vs challenging a will
People use these words as if they mean the same thing, but lawyers don’t. Challenging a will means arguing that it’s invalid, for example because the person didn’t have mental capacity, was pressured into it, didn’t understand what they were signing, or the will wasn’t signed and witnessed properly under the Wills Act 1970 (WA). If a challenge succeeds, the will (or part of it) falls away.
Contesting a will, in the sense most people mean, accepts that the will is valid and says it doesn’t do enough for you. Legal Aid WA explains that the Supreme Court will not usually interfere with what someone put in their will, or with how the estate is split under the Administration Act 1903 (WA) when there’s no will, unless an eligible person applies under the Family Provision Act and shows they weren’t adequately provided for. You can read their summary on Legal Aid WA’s page on challenging an unfair will.
The legal test is whether the estate made adequate provision for your “proper maintenance, support, education or advancement in life”. If the court decides it didn’t, it can order further provision out of the estate. Everything else in this article hangs off that one idea.
Who Can Contest a Will in WA?
Only certain people have standing. Section 7 of the Family Provision Act lists them, and you can read the Act itself on the WA legislation website. In plain terms, the list covers:
- A spouse or de facto partner who was with the deceased immediately before they died.
- A former spouse or de facto partner who was receiving, or was entitled to receive, maintenance from the deceased at the date of death.
- A child who was alive at the date of death or born within 10 months afterwards. This includes adopted children, and adult children are the group that most often brings these claims.
- A grandchild, but only in limited situations, such as where the deceased was maintaining them or their parent had died before the deceased.
- A stepchild, again only where specific conditions about being maintained are met.
- A parent, where the relationship was acknowledged or established during the deceased’s lifetime.
Being family isn’t enough on its own. A sibling, a nephew or a close friend, however deserving, generally can’t bring a claim unless they fall into one of those boxes. If you aren’t sure whether you do, that’s worth settling quickly, because the clock below is already running in the background.
Reasons to Contest a Will (and What the Court Actually Looks At)
What counts as inadequate provision
Western Australia’s leading authority here is Vigolo v Bostin, a 2005 High Court decision that started life in WA. It confirmed that the court asks two questions: first, whether the provision made for you was inadequate, and second, if it was, what provision would be adequate. The judge has wide discretion and looks at your whole situation, not just your relationship with the person who died.
In practice, that means things like your age and health, your income and savings, whether you can work, your living costs, any caring or dependency history, how big the estate is, and what the other beneficiaries need. A spouse who has been left with no home, an adult child with a disability who relied on a parent, or a person who spent years caring for the deceased for little or no pay are the kinds of people who tend to have the strongest cases.
What won’t get you far?
“I got less than my brother” is usually not enough by itself. The courts don’t start from an assumption that children should share equally. A will that treats four children identically can actually be the unfair one if only one of them is struggling financially. And if you’ve been left a modest amount, it’s harder (though not impossible) to argue it was inadequate, whereas being left nothing at all can strengthen a claim, depending on the circumstances.
Estrangement matters too. A deceased person’s reasons for leaving someone out, and your own conduct towards them, are things a court can take into account.
The Deadline for Contesting a Will in WA
The six-month rule
You generally have six months from the date the grant of probate or letters of administration is issued to file a family provision application. Note that the clock doesn’t start on the date of death. It starts when the Supreme Court grants authority to administer the estate. If you aren’t sure how that works, our page on probate and letters of administration explains what the grant is and how it’s obtained.
Asking for more time
You can apply for leave to file out of time, and that application can be made even after the six months have passed. But don’t treat it as a safety net. In Scott v Hamilton [2014] WASC 365, a claimant applied about eight months late, and the Supreme Court refused to extend time after concluding she had made a conscious, informed decision not to proceed and then simply changed her mind. The court described the time limit as substantive, which is a polite way of saying it won’t bend easily. Delay, the reason for it, and whether the other side would be prejudiced all count.
How to Contest a Will in WA: Step by Step
Every matter is different, but most family provision claims follow roughly this path.
- Get legal advice early. Legal Aid WA doesn’t give advice on inheritance matters, and points people to lawyers who specialise in this area. Early advice tells you whether you’re an eligible person and whether your claim is realistic.
- Find out where the estate is up to. Is there a will? Has probate been applied for or granted? Executors usually publish their intention to apply for a grant on the Supreme Court of WA’s website, so that notice is often the first sign the clock is about to start.
- Gather your evidence. Think about your income, assets, debts, medical records, living arrangements, and anything showing your relationship with the deceased, including any financial support or care you gave.
- File the application in the Supreme Court within six months of the grant, supported by an affidavit setting out your circumstances and why the provision was inadequate.
- Serve the executor and affected beneficiaries. They then respond, and they’ll file their own evidence about the estate and their own needs.
- Try to settle. Most disputes are pushed towards mediation or negotiation before a trial, and many matters end at that stage.
- Go to a hearing if it doesn’t settle. A judge decides whether the provision was inadequate and, if so, what the right outcome is.
Can You Contest a Will Before Probate?
Sort of, but not in the way most people hope. A family provision claim is brought against the estate, and the six-month window runs from the grant, so in practice there’s usually nothing to file until probate or letters of administration have been granted.
What you can do beforehand is stay informed and protect yourself. If you think the will itself is invalid, you should speak to a lawyer promptly about lodging a caveat with the Probate Registry of the Supreme Court.
A caveat stops a grant from being made without notice to you, which gives you time to raise your concerns. It’s aimed at validity problems, though, not at a general feeling that the will is unfair, so it’s not a substitute for a family provision claim. Seeing the will early, checking the notice of intention to apply, and getting advice before the grant issues are all sensible moves because they stop you being caught out by the deadline.
Can a Will Be Contested After Probate?
Yes, and in fact that’s when the vast majority of family provision claims are actually made, since the grant is what starts the clock. As long as you’re within the six months, a claim after probate is the normal route.
Contesting a will after the estate has been distributed
This is the one that surprises people. In some other states, a claim is effectively dead once the estate has been paid out. In WA the Supreme Court can still hear an out-of-time claim and, in certain circumstances, use section 65 of the Trustees Act 1962 (WA) to recover property (or its value) from a beneficiary who received it.
It’s far from guaranteed, and it’s messier, slower and more expensive than acting within time, particularly if the money has been spent. The practical lesson for claimants is not to assume it’s over because the estate looks finished, and the practical lesson for beneficiaries is that money received early may not always be safe.
What Happens When a Will Is Contested?
Once a claim is filed, the executor generally needs to hold off distributing the part of the estate that could be affected, and the case moves into evidence and negotiation. The two typical endings look quite different.
Settlement
Most claims settle. The parties agree on a new split, often recorded in a deed or consent order, and the executor carries it out. A settlement is private, quicker, and avoids the risk of a judge landing somewhere neither side wanted.
A court order
If there’s no agreement, a judge decides. The court can order a lump sum, a transfer of a specific asset such as a home, or periodic provision, and everyone else’s entitlements shrink to make room for it. Awards vary enormously, because each is tied to need and circumstances rather than any fixed percentage. After the order, the executor distributes the estate accordingly. Appeals exist but are uncommon.
How Long Does Contesting a Will Take?
There’s no official timetable, and anyone quoting you an exact number is guessing. A straightforward matter that settles at an early mediation can wrap up within a few months.
One where the parties dig in, the estate is complicated, or valuations are disputed can stretch well beyond a year, particularly if it goes to a full hearing. Delays also come from things you can’t control, like waiting for property to be valued or for a court date.
Who Pays to Contest a Will?
The starting point is that each side pays its own legal costs, but the court has discretion to order otherwise. A claimant who succeeds can often have a good part of their costs paid from the estate, though not always all of it.
A claimant who loses, or who runs a weak or unreasonable claim, can be ordered to pay costs, and the estate’s lawyers will want to be paid too. That’s why it’s worth asking for a realistic assessment of your prospects and a cost estimate before you commit.
Costs reduce the estate, which means they also come out of what everyone else, including you, would have received.
Can an Executor Contest a Will?
An executor’s job is to carry out the will, so they don’t “contest” it in their capacity as executor. They collect the assets, pay the debts and distribute what’s left, and when a claim lands they’re expected to stay neutral, preserve the estate and respond to the court rather than fight for one side. If you want a sense of the role, our post on what an executor does after probate in WA covers the responsibilities in detail.
There’s a catch, though. Many executors are also family members, and a family member might be an eligible person in their own right, such as a spouse or child. That person can bring a claim in a personal capacity, but they then have a conflict between their duty to the estate and their own interests. It’s the sort of situation where independent advice, and sometimes stepping aside as executor, can protect everyone, including the executor.
Defending a Will Contest Between Siblings
Sibling disputes are the ones that leave the longest scars, because they’re rarely about money alone. If you’re on the receiving end of a sibling’s claim, a few things help. Don’t distribute anything that might be needed to satisfy the claim until you have advice.
Keep communication civil and in writing where possible, since angry messages tend to end up as exhibits. And look hard at what the court cares about, which is need, not who was the favourite child. A brother who earns well and owns a house may have a weaker claim than a sister who cared for a parent and has nothing in savings, even if the will treated them identically.
It also pays to think about settlement early. A long fight can leave everyone with less than a sensible compromise would have delivered, because legal costs come out of the estate, and the family relationships are usually the first casualty.
Talk to Someone Before the Six Months Runs Out
If you think you may have a claim, get advice this week, because dates matter more here than almost anywhere else in estate law. It’s also a good moment to look at your own affairs, and if you’re curious, here’s what happens if someone dies without a will in WA.
At Hoe Lawyers in East Perth, we help with making a will, power of attorney and guardianship, and probate for estates you’re responsible for. Get in touch with Hoe Lawyers to talk through where you stand.
FAQs
If I was left something in the will, can I still contest it?
Yes. Getting a gift doesn’t shut the door, because the question is whether the provision was adequate for your circumstances, not whether you received anything at all. It does tend to make the argument harder, especially for an adult child with a reasonable income, so the court will look closely at the size of the gift against your needs.
Can I make a claim if there was no will?
You can. Family provision claims apply where the estate passes under the intestacy rules in the Administration Act 1903 (WA) as well as under a will. If the default formula leaves you with too little, you can ask the court to order more, as long as you’re an eligible person and you apply within the same time limit.
Do jointly owned property and super count as part of the estate?
Often they don’t. Property held as joint tenants usually passes straight to the surviving owner, and superannuation is generally paid under its own rules, so neither may be available to satisfy a claim. That can shrink what’s actually up for grabs, which is a good reason to get advice on what the estate really contains before you decide to proceed.
Do I need a lawyer, and where can I find one?
You aren’t legally required to have one, but this is a technical area with a hard deadline, so most people get advice. Legal Aid WA doesn’t advise on inheritance matters, and recommends finding a lawyer who specialises in this area.