How to Draft a Will in Western Australia that Minimises the Risk that it will be Challenged via a Family Provision Claim
July 2, 2025
Understanding Family Provision Claims in Western Australia
Family provision claims allow certain individuals to seek a greater share of a deceased person's estate if they believe they were not adequately provided for. In Western Australia, these claims are governed by the Family Provision Act 1972 (WA). This article addresses key aspects of eligibility, court considerations, and Will-drafting strategies to minimise disputes.
1. Eligibility to Make a Family Provision Claim in WA
Under the Family Provision Act 1972 (WA), the following individuals may apply to the Supreme Court for a larger share of an estate:
- Spouses or de facto partners (current or former, if receiving maintenance from the deceased).
- Children, including those born within 10 months after death.
- Grandchildren who were either:
- Maintained by the deceased before death; or
- Living at the time of death with a parent who predeceased the deceased.
- Stepchildren who were maintained by the deceased or where the deceased received >$517,000 from the stepchild's parent's estate.
- Parents of the deceased.
Claims must be filed within six months of the grant of probate or letters of administration, though extensions are rarely granted.
2. Factors Considered by the Court
When assessing entitlement, the court evaluates:
- Financial and personal circumstances: The applicant’s age, education, earning capacity, and current resources.
- Relationship dynamics: The nature of the relationship between the applicant and deceased, including conduct toward each other.
- Estate composition: The value, type, and liquidity of estate assets.
- Comparative needs: The financial requirements of other beneficiaries and dependents.
- Contributions: Any contributions by the applicant to the deceased’s assets or welfare.
- Existing provisions: What (if any) provision was made for the applicant in the Will.
The court does not assume equal distribution among children or automatically interfere with testamentary freedom.
3. Drafting Wills to Minimise Claim Risks
To reduce the likelihood of successful claims, consider these strategies:
- Clarity and specificity: Draft a detailed Will that unambiguously outlines asset distribution, reflecting current circumstances and intentions. Ambiguous terms or outdated provisions increase dispute risks.
- Memorandum of wishes: Attach a non-binding document explaining exclusions or unequal distributions (e.g., estrangement, prior financial support).
- Proactive communication: Discuss your estate plans with potential claimants to manage expectations and reduce post-death surprises.
- Regular reviews: Update your will every 3–5 years or after major life events (e.g., marriage, divorce, new dependents).
- Caution with forfeiture clauses: While "no-contest" clauses (threatening inheritance loss for challengers) may deter claims, they are not legally binding in Western Australia for family provision claims.
Key Takeaways
Understanding eligibility criteria, court evaluation factors, and preventive Will-drafting techniques is essential for effective estate planning in Western Australia. Executors and beneficiaries should seek prompt legal advice when disputes arise, while Will-makers should prioritise clear documentation and open communication to mitigate risks. Professional legal guidance ensures compliance with the Family Provision Act 1972 (WA) and reduces the emotional and financial toll of litigation.
A new year is the perfect time to revisit an important question: is your Will still up to date? Many people make a Will once and then leave it untouched for years. But life rarely stays still. Relationships change, children are born, assets are bought and sold, businesses evolve, and family circumstances shift. A Will that once reflected your wishes may no longer do so. For that reason, reviewing your Will regularly is one of the simplest ways to protect the people and assets that matter most. Why people delay updating their Will It is easy to put off Estate Planning. Some people assume their Will is “good enough” because nothing dramatic has happened. Others feel uncomfortable thinking about what happens after they are gone. In practice, the most common reason Wills become outdated is not neglect in a dramatic sense, but everyday change. You may have: Married or separated. Had children or grandchildren. Bought property. Started or sold a business. Gained or lost significant assets. Named an Executor who is no longer suitable or available. If any of these apply, your current Will may need review. What can happen if a Will is outdated An outdated Will can create confusion, delay, and conflict at exactly the moment your family is already dealing with loss. It may also fail to reflect your real intentions. For example, assets may pass to someone you no longer intended to benefit, or a chosen Executor may no longer be the right person to manage the Estate. In some cases, the wording of an old Will can even create disputes that could have been avoided with a simple update. When to review your Will A good rule of thumb is to review your Will after any major life event, and otherwise every few years. You should consider an update if you have experienced: A marriage, divorce, or de facto relationship change. The birth or adoption of children. A death in the family. A major change in assets or liabilities. A move interstate or overseas. A change in your wishes about guardianship for your children, gifts, or Executors. Even if nothing major has changed, a periodic review helps ensure your instructions remain clear and legally effective. A simple process can prevent future problems Updating a Will does not have to be complicated. In many cases, a short review with a lawyer is enough to confirm whether the existing document still works or whether a new will is needed. A proper review can also identify related issues, including: Powers of attorney. Appointment of guardians. Superannuation nominations. Business succession arrangements. Asset ownership structures. These matters often work together, so an estate plan should be considered as a whole rather than as a single document. The takeaway The start of a new year is a useful reminder to get organised, and your Will should be part of that process. If your circumstances have changed, or if it has been several years since your last review, now is a sensible time to take another look. A current, well-drafted Will can save your family stress later and help ensure your wishes are carried out clearly. Contact Crabtree Legal today for practical advice on updating your estate plan and protecting the people you care about most.
As we wrap up the year, we want to extend our heartfelt thanks to everyone who has supported Crabtree Legal since we commenced operations in May 2025. It’s been a privilege to serve our clients, collaborate with our partners, and begin building a legal practice grounded in integrity and community. We wish you and your loved ones a joyful Christmas filled with rest, connection, and gratitude. May the new year ahead be blessed with peace, purpose, and new opportunities. Thank you for being part of our journey. We look forward to supporting you in 2026. Warm regards, Jonathan Crabtree & the Crabtree Legal team
At Crabtree Legal, we understand that protecting your children’s inheritance from potential relationship breakdowns is a crucial concern for many families. The landmark Family Court of Australia decision in Bernard and Bernard [2019] FamCA 421 confirmed that testamentary trust Wills can be an effective tool in safeguarding a beneficiary’s inheritance from being divided upon divorce. Background of the Case In Bernard v Bernard, the husband’s late father created two discretionary testamentary trusts through his Will — one for his son and one for his daughter. The trusts operated as “mirror trusts”: each sibling was the trustee of the other’s trust but had no control over their own trust. The husband was the primary beneficiary of his trust, but the assets were legally owned and controlled by his sister as trustee. When the husband and wife later separated and divorced, the wife sought to have the husband’s inheritance held in the testamentary trust included in the matrimonial property pool for division. However, the husband argued that since he did not legally own or control the trust assets, and his interest was solely as a beneficiary dependent on the trustee’s discretion, the inheritance should be excluded from the property pool. Court’s Decision and Key Findings The Family Court ruled in favor of the husband, finding that the assets in the testamentary trust were not part of the matrimonial pool. The court’s key reasoning was that: The husband was not the settlor of the trust—the deceased father was. The husband had no legal ownership or control over the trust assets. The trustee (the husband’s sister) had complete discretion over income and capital distributions. The husband’s interest was discretionary and not guaranteed, meaning he could not compel distributions. The trust assets were inherited and not acquired during the marriage. This decision confirmed that a properly structured testamentary trust can protect a beneficiary’s inheritance from being divided upon divorce by separating legal ownership and control from mere beneficial interest. Why This Matters for Your Estate Planning Bernard v Bernard highlights how testamentary trust Wills can be used to safeguard your children’s inheritance from future relationship breakdowns, ensuring that inherited assets remain protected within the family and are not treated as divisible property in the event of a divorce. At Crabtree Legal, we specialise in Wills incorporating testamentary trusts and can provide tailored advice and drafting services to help you protect your family’s wealth across generations. Contact Crabtree Legal Today If you want to ensure your children’s inheritance is protected from a future divorce or relationship breakdown, contact Crabtree Legal today. We will guide you through establishing testamentary trust Wills that provide peace of mind and strong asset protection tailored to your family’s needs.