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 Ambiguous terms or outdated provisions increase dispute risks.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.
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.
Selling or buying a business can be a complex process involving significant legal, financial, and operational considerations. Engaging a lawyer with experience in selling and buying businesses is crucial to ensure the transaction proceeds smoothly, complies with Australian law, and protects your interests—whether you are a buyer or a seller. Role of Lawyers in Business Sales and Purchases Lawyers play a central role in every stage of the business sale or purchase process: Due Diligence : Lawyers conduct thorough due diligence to uncover hidden risks, such as undisclosed debts, pending litigation, regulatory issues, or problems with contracts, leases, and intellectual property. This process helps buyers make informed decisions and gives sellers confidence that all disclosures are accurate. Drafting and Reviewing Agreements : Lawyers draft and review all key agreements, ensuring they are tailored to the specific transaction and comply with Australian law. This includes the main business sale agreement and any ancillary documents. Negotiating Terms : Lawyers negotiate terms on behalf of their clients to secure favorable outcomes, clarify obligations, and address any ambiguities or potential pitfalls in the contract. Transfer of Assets and Contracts : They manage the legal transfer of assets, leases, permits, licenses, and ongoing contracts, making sure all necessary approvals and assignments are obtained. Employment Law Compliance : Lawyers advise on the treatment of existing employees, transfer of entitlements, and compliance with workplace laws, ensuring a seamless transition for staff. Settlement and Completion : They oversee the settlement process, confirming that all conditions are satisfied, payments are made, and legal ownership is transferred without outstanding liabilities. Post-Sale Support : Lawyers can provide ongoing advice on post-sale obligations, such as restraint of trade, handover arrangements, and dispute resolution. Key Agreements and Documents Lawyers Draft The main legal document in a business sale is the Business Sale Agreement. Lawyers also prepare or review several related documents to safeguard their client’s interests: Heads of Agreement or Term Sheet : A preliminary, usually non-binding document setting out the key terms agreed by the parties before the full contract is drafted. Business Sale Agreement : The comprehensive contract detailing all terms and conditions of the sale, including what is being sold (assets, shares, goodwill), price, payment terms, and settlement arrangements. Transfer Deeds : For transferring ownership of specific assets, intellectual property, or leases. Employment Agreements or Transfer Notices : To address the transfer or termination of employees and the treatment of their entitlements. Non-Disclosure Agreements (NDAs) : To protect confidential information during negotiations and after the sale. Completion Checklist : A practical tool to ensure all steps are completed before settlement. Why Legal Advice Is Essential Attempting to buy or sell a business without legal guidance exposes parties to significant risks, including: Unintended assumption of liabilities. Disputes over what is included in the sale. Problems with the transfer of leases, contracts, or licenses. Employment law breaches. Tax and regulatory non-compliance. Lawyers help ensure all legal requirements are met, documents are properly drafted, and your interests are protected throughout the transaction. Conclusion Once the value of a business reaches a certain level, lawyers become indispensable in business sales and purchases. They provide expert guidance, draft and negotiate robust agreements, and manage the legal complexities of the transaction. Engaging a lawyer early in the process is the best way to help ensure a successful, compliant, and dispute-free outcome.
Launching a start-up in Australia is an exciting venture, but it also involves navigating a complex legal landscape. Engaging a lawyer to draft and review your foundational legal documents is crucial for protecting your interests, ensuring compliance, and setting your business up for long-term success. Below is a guide to the key legal documents every Australian start-up should consider, and why professional legal drafting (and not AI) is essential. 1. Company Constitution Sets out the rules for governing your company, including director powers, shareholder rights, and meeting procedures. A well-drafted constitution tailored to your business can prevent future disputes and ensure compliance with the Corporations Act . 2. Shareholders Agreement (or Partnership Agreement) Defines the rights and responsibilities of founders and investors. Covers share transfers, dispute resolution, exit strategies, and decision-making processes. Essential for start-ups with multiple founders or external investors to avoid misunderstandings and future conflicts. 3. Employment Agreements and Contractor Agreements Clearly set out roles, duties, remuneration, confidentiality, and intellectual property ownership for employees and contractors. These agreements must comply with Fair Work legislation and other employment laws. Proper agreements help prevent disputes and clarify expectations. 4. Confidentiality and Non-Disclosure Agreements (NDAs) Protect sensitive business information, intellectual property, and trade secrets when dealing with third parties, potential investors, or collaborators. NDAs are critical in the early stages of product development and fundraising. 5. Intellectual Property (IP) Assignment Agreements Ensure that any intellectual property created by founders, employees, or contractors is legally owned by the company. This is vital for protecting your brand, technology, and other intangible assets. 6. Website Terms & Conditions and Privacy Policy Terms & Conditions set the rules for users interacting with your website or app, limiting liability and setting out acceptable use. A Privacy Policy is legally required if you collect personal information, ensuring compliance with the Australian Privacy Act. Both documents are essential for online businesses and e-commerce start-ups. 7. Supply, Service, and Client Agreements Define the terms of business with suppliers, customers, and service providers. Include payment terms, delivery obligations, warranties, and dispute resolution mechanisms. Well-drafted contracts reduce the risk of costly disputes and ensure clarity in commercial relationships. 8. Employee Share Scheme (ESS) Documentation If you plan to offer equity to employees, clear documentation is required to comply with tax and corporate regulations. Lawyers can help structure schemes that attract talent while protecting the company. 9. Fundraising and Investment Documents Includes term sheets, share subscription agreements, convertible note deeds, and loan agreements. Proper documentation ensures compliance with fundraising laws and protects both the company and investors during capital raising rounds. 10. Company Registration and ASIC Filings Lawyers can assist with registering your company, obtaining an Australian Company Number (ACN), and ensuring all ASIC filings are accurate and timely. This includes drafting documents required for company formation and ongoing compliance. Why Engage a Lawyer and Not AI for These Documents? Inaccurate or Incomplete Clauses or Drafting : AI can miss critical legal terms or misunderstand your business context, leading to unenforceable or non-compliant agreements or documents. False Sense of Security : AI-generated contracts may look professional but can be legally flawed or outdated, increasing the risk of disputes. Lack of Customisation : AI cannot account for your unique business model, industry, or risk tolerance, leading to generic agreements that don’t fit your needs. Regulatory Compliance Risks : Australian laws are complex and change frequently. AI tools may not capture all compliance requirements, exposing your start-up to fines or litigation. Poor Drafting from Bad Inputs : AI is only as good as the information provided. Vague or incomplete instructions can result in agreements that do not reflect your intentions. Conclusion While AI tools and templates can be helpful for simple, low-risk documents, start-ups in Australia should always engage an experienced lawyer to draft or review critical legal agreements and documents. This ensures your business is protected, compliant, and set up for long-term success. Investing in legal expertise at the outset can save your start-up from costly mistakes and disputes down the road.