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 Ambiguous terms or outdated provisions increase dispute risks.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.

Estate planning is a foundational step in securing your legacy, and choosing between a simple or complex Will depends on your assets, family dynamics, and long-term objectives. Below, we clarify the distinctions to help you make an informed decision. What is a Simple Will? A simple Will provides straightforward instructions for distributing your estate. Key characteristics include: Direct distribution: assets are left directly to beneficiaries as lump sums, percentages, or specific gifts (e.g. 'my children are to receive equal shares as tenants in common'). Minimal structures: no trusts or complex conditions; executors transfer assets immediately after death. Ideal for: uncomplicated estates with modest assets, no dependents requiring special protection, and low risk of disputes. Pros: Cost-effective: lower legal fees due to simpler drafting. Efficient administration: executors can distribute assets faster with fewer compliance steps. Cons: Limited protection: beneficiaries receive assets directly, exposing inheritances to risks like divorce, bankruptcy, or irresponsible spending. Tax inefficiency: income generated by inherited assets (e.g., rental properties) is taxed at the beneficiary’s marginal rate, potentially increasing their tax burden. What is a Complex Will? A complex Will incorporates advanced structures to manage asset distribution under specific conditions. Key features include: Testamentary Trusts: assets flow into a trust upon your death, managed by a trustee for beneficiaries (e.g. minor children or financially vulnerable relatives). Custom conditions: distributions can be age-based (e.g. 'children inherit at 25'), staggered, or contingent on milestones (e.g. university graduation). Ideal for: larger estates, blended families, business owners, or beneficiaries needing asset protection (e.g. professionals at risk of lawsuits). Pros: Asset protection: trusts can shield inheritances from beneficiaries’ creditors, divorce settlements, or poor financial decisions. Tax advantages: income generated by trust assets can be distributed strategically, potentially lowering overall tax liabilities (e.g. splitting income among lower-tax-rate beneficiaries). Greater control: specify how and when assets are used (e.g. funds for education only). Cons: Higher costs: drafting and administering trusts requires specialised legal expertise, increasing fees. Administrative complexity: trustees must manage compliance, record-keeping, and annual tax filings for the trust (with increased fees to obtain accounting and/or financial advice to support if needed). When to Choose Each Will Type Opt for a simple Will if: Your estate is modest (e.g. under $500,000) and your beneficiaries are financially responsible adults. You seek a quick, cost-effective solution without ongoing administrative needs. Choose a complex Will if: Your estate includes businesses, trusts or international assets. Beneficiaries require long-term protection (e.g. minors, individuals with disabilities, or high-risk professionals). You prioritise tax optimisation or wish to mitigate family conflict. Conclusion Selecting between a simple and complex Will hinges on your unique circumstances. While simple Wills offer efficiency for uncomplicated estates, complex Wills provide robust solutions for asset protection and tax planning. Consult Crabtree Legal to tailor your will to your goals—ensuring your legacy is distributed securely and as intended.