Contesting a will and family provision claims in Western Australia

• Family Provision Act 1972 (WA) (WA)

  The principal Act, called the Inheritance (Family and Dependants Provision) Act 1972 until 2013. Section 6 lets the Supreme Court order provision out of the estate where adequate provision has not been made for the proper maintenance, support, education or advancement in life of a person entitled to claim, and lets the Court refuse an order because of the applicant's character or conduct. Section 7 lists who can claim and requires the application to be made within six months from when the executor or administrator becomes entitled to administer the estate in Western Australia, unless the Court gives leave to file out of time. Section 7A allows interim orders, section 14(6) leaves costs to the Court, and section 20 protects an executor who distributes without notice of a claim. The current compilation has been in force since 18 December 2025.

• Administration Act 1903 (WA) (WA)

  Governs grants of probate and letters of administration in Western Australia, the resealing of grants made elsewhere (section 61), caveats against a grant (sections 63 and 64), and how an estate is shared when there is no valid will.

• Wills Act 1970 (WA) (WA)

  Sets out how a valid will is made, altered and revoked in Western Australia, including the formal requirements in section 8 (in writing, signed, and witnessed by at least two witnesses present at the same time), the effect of marriage and divorce, and the Court's power under section 32 to accept a document that was not properly signed or witnessed as a will if satisfied the person intended it to be their will.

• Non-contentious Probate Rules 1967 (WA) (WA)

  Rules made under the Administration Act 1903 for applications in the Probate Office. Rule 9B requires the applicant for a grant to file a statement of the estate's assets and debts, rule 33 governs caveats (a caveat lasts six months unless the Court orders otherwise), and rule 43A lets anyone, on paying the fee, search for and copy a grant or a will that has been proved.

• Superannuation Industry (Supervision) Act 1993 (Cth) (CTH)

  Commonwealth law regulating superannuation, including death benefits. Super does not automatically form part of a person's estate: a death benefit the fund pays directly to a dependant or other nominee is not part of the Western Australian estate, so a family provision order cannot reach it. Only a benefit paid to the legal personal representative (the executor or administrator) becomes part of the estate.

• Supreme Court of Western Australia

  The only court that can make family provision orders in Western Australia (the Act defines the Court as the Supreme Court), and the court that makes grants of probate and letters of administration. Family provision claims are started by originating summons and are case managed by registrars, with mediation, before any trial.

• Supreme Court of WA - Probate

  The Probate Office receives and examines applications for grants of probate, letters of administration and reseals, and caveats are lodged with the Court's Registry. Contact the Probate Office on (08) 9421 5333 (option 1) or supremecourt.probate@justice.wa.gov.au.

• Supreme Court of WA - Consolidated Practice Directions

  The Court's practice directions. Practice Direction 9.2.2 sets out how family provision claims are run: what the originating summons and first affidavit must contain, who to join, case management by registrars, mediation, applications for leave to file out of time, and costs. Practice Direction 9.2.3 explains how to ask for the statement of the estate's assets and liabilities filed with the grant application.

• Public Trustee (Western Australia)

  Administers deceased estates and can act as executor or administrator, including where there is no will or the named executor cannot or will not act. It also drafts wills for a fee and stores wills in the WA Will Bank. Phone 1300 746 116.

• Court of Appeal, Supreme Court of Western Australia

  The Supreme Court's appeal division. It hears civil appeals, including appeals in family provision cases, under the Supreme Court (Court of Appeal) Rules 2005.

1. 01Find out whether a grant has issued

   Ask the executor or their lawyer, or the Supreme Court's Probate Office, whether probate or letters of administration have been granted and on what date. Under rule 43A of the Non-contentious Probate Rules 1967 anyone can, on paying the fee, search for and get a copy of a grant and of a will that has been proved. The six month period generally runs from the grant date, so it is the most important fact in a Western Australian claim.

   Typical timeframe: As early as possible

2. 02Check that you are entitled to claim

   Confirm that you fall within one of the categories in section 7(1) and, where the category is conditional, that the conditions are met. Former partners, grandchildren and stepchildren each have conditions, and a stepchild can claim only if the deceased died on or after 16 January 2013.

   Typical timeframe: Early, before costs build up

3. 03Notify the executor and gather information

   Write to the executor or administrator giving notice of the claim and asking for the will, the grant and details of the estate's assets and debts. Under Practice Direction 9.2.3 you can also ask the Court's Principal Registrar for the statement of assets and liabilities filed with the grant application: deciding whether to make a family provision claim is one of the listed purposes, and you must sign an undertaking about how you will use it. Giving notice does not stop the clock, and under section 20(5) a notice of an intended claim lapses if the executor is not told within three months that an application has been filed (or within 12 months of the executor becoming entitled to administer, if that is sooner).

   Typical timeframe: Straight away, well within the 6 months

4. 04Negotiate before filing

   Exchange financial information and consider a without prejudice offer. Some claims settle at this stage, particularly in modest estates where costs would consume much of the benefit. Negotiating does not extend the time limit, so keep the filing deadline in view.

   Typical timeframe: Only while time remains

5. 05File in the Supreme Court

   File an originating summons that states the provision you are asking for, with a first affidavit showing your standing under section 7(1), why the provision made for you is not adequate, and two tables setting out your assets and liabilities and your income and expenses (Practice Direction 9.2.2). Join the executor or administrator as first defendant and the beneficiaries whose shares you want reduced. If the six months has passed, you must first file a separate originating summons asking only for leave to file out of time, with an affidavit explaining the delay; if leave is granted, the claim itself is filed separately.

   Typical timeframe: Within the 6 month limit

6. 06Directions, disclosure and mediation

   Registrars case manage family provision claims and all substantive claims are mediated. At the first case management conference the executor is usually ordered to file an affidavit of the estate's assets and liabilities, and the registrar may fix a mediation date and may act as mediator. Discovery is not usually ordered. Registrars cannot make consent orders for provision out of the estate, so agreed orders are referred to a Master or a Judge.

   Typical timeframe: Set by the case manager

7. 07Trial and judgment

   If mediation does not resolve the claim, the Court gives directions for further affidavits to prepare it for hearing by a Judge or Master, who decides whether to order provision and what costs orders to make.

   Typical timeframe: Only if the claim does not settle

Under section 14(6) of the Family Provision Act 1972 the Court makes whatever costs order it considers just. Practice Direction 9.2.2 says the Court expects costs in these claims to be proportionate and warns that an unsuccessful party may have to pay the other side's costs or bear their own, rather than having them paid from the estate. Before mediation each side must know the costs incurred so far and the further costs a trial could bring. Supreme Court fees in force from 1 July 2026 include $2,009 for an individual to file originating process and $473 to file a request for a mediation conference, with further fees if a claim goes to trial. A concession card holder or a person in financial hardship who is approved for a reduced fee before filing pays $100 to file. Under the Legal Profession Uniform Law, which has applied in Western Australia since 1 July 2022, a lawyer must give you a written estimate of total costs once costs are likely to exceed $750, and the costs disclosure for a no win, no fee arrangement must be signed by you, define a successful outcome and include a cooling-off period.