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 Ambiguous terms or outdated provisions increase dispute risks.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.
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.
Crabtree Legal extends our sincere thanks to The Executive Centre for graciously hosting yesterday's Member Showcase lunch event, where our Director, Jonathan Crabtree, had the pleasure of presenting to fellow business owners. The session explored the limitations of Artificial Intelligence (AI) in drafting key legal documents for start-ups and Small to Medium Enterprises (SMEs). Together, we examined common pitfalls that arise when relying solely on automated drafting tools, including the risks of incomplete agreements, unenforceable clauses, and loss of commercial protection. We are particularly grateful to the business owners and entrepreneurs who attended and contributed to the discussion. Your questions, insights, and shared experiences sparked an engaging and practical conversation about balancing technological progress with the value of tailored legal advice. At Crabtree Legal, we remain committed to helping Perth’s business community make informed decisions as they grow and protect their ventures. Events like this highlight the strength of collaboration between local professionals and the importance of thoughtful, legally sound documentation in every stage of business development. To learn more about how we assist start-ups and SMEs with business structuring, shareholder agreements, and contract reviews, please contact us.