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 Ambiguous terms or outdated provisions increase dispute risks.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.
When planning for your family's future, drafting a Will is one of the most important steps you can take to ensure your wishes are respected and your assets are distributed as intended. While online templates and DIY kits may seem convenient or cost-effective, there are significant risks associated with self-drafting your Will. Here's why working with a qualified lawyer—especially a veteran lawyer like Jonathan Crabtree Legal—is a wise investment in your family's security and peace of mind. 1. Legal Expertise Ensures Your Will is Valid A Will that doesn’t meet legal requirements can be challenged in court or disregarded entirely. Lawyers have deep knowledge of the intricacies of wills, estate, and succession laws in Western Australia. By engaging a professional, you ensure your Will: Meets statutory requirements for validity, including proper witnessing and execution. Is worded clearly to avoid ambiguities or misinterpretations. Anticipates future changes (such as marriage, divorce, or the birth of children). 2. Avoiding Costly Mistakes DIY Wills commonly lead to errors, from incorrect signing procedures to omitted details about assets or beneficiaries. Such mistakes can result in: Your Will being declared invalid. Family disputes or litigation. Unintended tax liabilities or missed opportunities for asset protection. A an experienced estate planning lawyer will tailor your Will to your specific circumstances, ensuring all provisions are accurate and comprehensive. 3. Advice Beyond Simple Drafting Every individual’s situation is unique. An experienced lawyer will provide guidance on estate planning strategies designed to protect your legacy, such as: Testamentary trusts for children or vulnerable beneficiaries. Business succession planning to secure your business interests. Dealing with superannuation, trusts, and complex assets. Reviewing Powers of Attorney and Guardianship to safeguard your interests if you lose capacity. 4. Proper Witnessing and Execution Improper witnessing is a leading cause of invalid Wills in Australia. A lawyer will: Ensure that your Will is signed and witnessed in accordance with the law. Act as a professional witness, ready to defend the process should it be challenged. Hold safe records for future reference. 5. Peace of Mind and Protection for Your Loved Ones By entrusting your Will to an experienced estate planning lawyer, you protect your family from avoidable stress and conflict. Your lawyer can help anticipate problems, resolve ambiguities, and reduce the likelihood of challenges to your Will’s validity. How Crabtree Legal Can Help At Crabtree Legal, Jonathan Crabtree has extensive expertise in preparing straightforward and complex Wills, including those incorporating testamentary trusts, and Powers of Attorney and Guardianship. As a veteran owned and operated law firm based in Perth, WA, we pride ourselves on providing practical, empathetic advice tailored to your needs. Contact us today to safeguard your legacy and give your loved ones security and peace of mind.
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Starting a new company is an exciting venture, but establishing a solid legal foundation from the outset is critical for long-term success. One of the most overlooked yet essential documents for any business with more than one shareholder is a Shareholders Agreement. Engaging a commercial lawyer to draft and assist you to validly execute this agreement at the commencement of your business can protect your interests, prevent disputes, and set your company up for lasting stability. What is a Shareholders Agreement? A Shareholders Agreement is a private, legally binding contract between a company’s shareholders (and often the company itself). It sets out how the company is managed, how key decisions are made, how exits or disputes are handled, and what happens if a shareholder wishes to leave or transfer their shares. Key Reasons to Get a Shareholders Agreement Drafted by a Commercial Lawyer 1. Clarity and Certainty on Roles and Rights Clearly outlines each shareholder’s rights, responsibilities, and decision-making powers from the outset. Removes ambiguity around management structure, voting rights, and director appointments, helping to avoid misunderstandings and conflicting expectations. 2. Preventing Costly Disputes Provides agreed procedures for resolving conflicts, often through internal mechanisms and alternative dispute resolution before court action. Helps ensure minor disagreements do not escalate into expensive and disruptive legal battles. 3. Protecting the Interests of All Shareholders Safeguards the investments and interests of both majority and minority shareholders, preventing unfair treatment and providing mechanisms for redress. Outlines how decisions are made, including which require unanimous or special majority consent, benefiting both active and passive shareholders. 4. Smooth Share Transfers and Exit Strategies Details rules for issuing new shares or transferring existing ones, including pre-emptive and “drag-along” or “tag-along” rights. Ensures continuity and stability if a shareholder wishes to leave, retires, or passes away, preventing unwanted third parties from joining the company. 5. Business Growth and Investment Readiness Demonstrates business maturity and governance, giving confidence to future investors, banks, and other stakeholders. Investors often insist on a robust agreement as a prerequisite for funding rounds or other strategic partnerships. 6. Protecting Confidentiality and Company Value Includes clauses safeguarding against misuse or disclosure of confidential company information. Prevents former shareholders from directly competing with the business or poaching key staff and clients. Why Get Help from a Commercial Lawyer? While some templates are available online, they rarely address the unique dynamics and needs of each startup. A commercial lawyer will: Tailor the agreement to your business’s structure, goals, and risk profile. Ensure compliance with the Corporations Act 2001 (Cth) and other relevant Australian laws. Minimise the risk of unenforceable or contradictory clauses and keep your agreement up-to-date as your business evolves. The Importance of Executing the Agreement at Commencement Executing a shareholders agreement at the start of your business journey: Ensures all founders and shareholders are aligned before capital, effort, and goodwill have been significantly invested. Avoids “moving the goalposts” after the fact, when negotiations may be more contentious or when disputes have already emerged. Ensures the terms are legally binding and enforceable, giving all parties true peace of mind. Conclusion A shareholders agreement is not a statutory requirement—but for any new Australian company with more than one shareholder, it is a critical tool for risk management, governance, and business success. Engaging a commercial lawyer to draft, tailor, and help you execute this document from day one offers real protection and clarity for your business and its investors. If you’re setting up a company, connect with Crabtree Legal to ensure you start up with the right legal structure in place. We can help tailor a shareholders agreement to fit your business, safeguard your rights, and support your future growth. This article is provided for general information only and does not constitute legal advice. For advice tailored to your business, please contact Crabtree Legal.