Here you will find a range of articles that you may find useful when navigating Family Law, Wills and Probate and Disability Discrimination Law. 

Challenging a Will in Western Australia - 14 December 2017

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Death of a family member can be an emotionally difficult time for most people. And when challenges arise as to inheritance, this can cause significant stress and sometimes go towards driving a wedge between families. On the one hand, a family member may be aggrieved if they have not been included in a person’s Will, or someone may wish to contest a Will on the basis that it was unfair.

What is a Will?

A Will is a legal document that sets out who gets part or all the property owned by a person when they die. This is an important document as it provides instructions on how your property is to be distributed and to whom.

Whilst it is the testator’s right to include, or not include whomever they see fit, the law is clear that people have a “moral responsibility” to provide for family members fairly. This moral responsibility is encapsulated in the Family Provision Act 1972 (WA).

What happens if there is no Will?

If a person dies without leaving a valid Will they are said to have died intestate. An application must be made to the Supreme Court of Western Australia for a grant of Letters of Administration, which then allows an individual to legally deal with a deceased person’s property.

Once the Letters of Administration is granted, the distribution of the deceased person’s property is made in accordance to the Administration Act 1903 (WA).

Who can contest the Will

Section 7 of the Family Provision Act 1972 (WA) outlines who can make an application to contest a Will. This includes family members such as spouses (current and former), de-facto, children, step-children, grandchildren and parents.

Grounds for contesting a Will

Validity of the Will

There are various reasons a person can contest a Will, one of which is that the Will is ‘invalid’.

As long as the person making the Will, also known as the testator, is legally capacitated and the form of the Will complies with the section 8 of the Wills Act 1970, then a Will is said to be valid.

The testamentary capacity of the person is assessed under the Banks v Goodfellow test that require the testator to:

·       understand the nature of the Will and its effect;

·       understand the nature and extent of their property;

·       comprehend and appreciate the claims to which they ought to give effect; and

·       be suffering from no disorder of the mind or insane delusion that would result in an unwanted disposition.

The Family Provision Act 1972 (WA) states that a Will should provide ‘adequate provision for the proper maintenance, support, education or advancement in life’ of any persons who are listed as those entitled to contest a Will (see above). However, the law is silent in relation to what is considered “adequate”. This is due to the fact that the circumstances of each individual family can be vastly different and complex, and it is near impossible to provide a blanket rule to all families

Therefore, it is to the Supreme Court of Western Australia to make a determination of what “adequate” means in relation to the case in front of them. If through litigation, it is determined that a Will does not provide adequate provision for a family member, then the Court may over-ride the original Will and redistribute the inheritance to make it fair and adequate.

Time limitation

Any actions to contest a Will must be brought before the Court within 6 months from the date that Probate or Letters of Administration is granted.

How we can help you

If you believe that the Will does not provide you with a fair distribution of the inheritance you may want to consider your options. Here at Empire Barristers and Solicitors we are highly experienced in providing inheritance advice and Court representation.

For further information and assistance, call Empire Barristers and Solicitors on +61 8 6311 9644 or email us at info@empirelaw.com.au.

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The Unbinding of a Binding Financial Agreement - 13 November 2017

On date the High Court of Australia handed down the decision of Thorne v Kennedy, leaving the family law fraternity divided in it's opinions of whether this landmark decision is the beginning to the end of binding financial agreements.

Better known to the general public thanks to the infiltration of American television as a "pre-nup", the divisions of differing opinions are based on one argument being that contractual arrangements are valid forms of agreements within the family setting. Conversely, the other opinion is that binding financial agreements are inequitable as the bargaining power between the parties are different.  In a way the Family Law Act reflects the law of equities and it is up to the judge to determine what is fair; however the High Court have gone that bit further in their judgement for Mrs Thorne case.

The facts of the case put simply are that, in 2006 Mr Kennedy was a 67 year old property developer with assets worth at least $18 million, who met Mrs Thorne online and after brief exchanges of communication she came to Australia to marry with Mr Kennedy. Four days prior to their wedding Mr Kennedy insisted that Mrs Thorne sign a binding financial agreement. Mrs Thorne’s lawyer at the time advised her not to sign the agreement as the terms of the agreement were eschewed in the husband’s favour. Notwithstanding the legal advice, Mrs Thorne went ahead and signed the document as the consequences of not signing will be that the wedding would be called off completely. Moreover, the terms as described by the primary judge that she will end up with “no job, no visa, no home, no community”.

Flash forward to June 2011, and the marriage has now dissolved and Mrs Thorne was only entitled to $50,000.00 of her husband's assets. Like all independent modern day women, Mrs Thorne commenced legal proceedings in April 2012 and now, some 5 years later, the case has finalised in her favour.

The High Court unanimously found that Mrs Thorne suffered from unconscionable conduct and the majority found that there was undue influence. With these two vitiating factors, the Court set aside the binding financial agreement. Moreover, the proponent that family law is based on equity law wins over the black and white nature of contract law.

Whilst Part VIIIA of the Family Law Act allows couples to regulate financial agreement, the High Court's judgement means that it will likely be harder to impose contract law in family law. This is because most binding financial agreements are imposed by one party who will have greater bargaining power over the other at the time of the agreement being signed.

Due to the uneven bargaining power, this landmark case will cast a long shadow over those who have signed binding financial agreements and it might be time for people who have signed an agreement to have it reviewed.