Wills & Estates in Western Australia — What You Need to Know Right Now
Do You Need a Lawyer?
A lawyer is critical where money or relationships are at stake: if you want to contest a will or defend an estate against a family provision claim, if there is any dispute about whether a will is valid (capacity, undue influence or fraud), if the estate is large or holds a business, farm, trust or assets in more than one state or country, or if someone has died without a will and the family is not in agreement. Executors and administrators also carry personal liability if they distribute an estate wrongly or too early, so advice before you act is cheap insurance. Simple, uncontested estates with a clear will and cooperative family can sometimes be handled without a lawyer, but the strict six-month deadline for family provision claims means you should get advice quickly if any dispute is brewing.
The Law in Western Australia
In Western Australia, the making of a will is governed by the Wills Act 1970 (WA). To make a valid will you must generally be at least 18 (with limited exceptions for married minors and court-authorised wills), the will must be in writing, and it must be signed by the will-maker in the presence of two witnesses who are present at the same time and who also sign. A beneficiary, or the spouse or de facto partner of a beneficiary, should not witness the will, as it can put their gift at risk. Importantly, section 32 of the Wills Act 1970 also gives the Supreme Court a "dispensing power" to admit an informal document - such as an unsigned draft, a note or even an electronic record - as a will where the court is satisfied the deceased intended it to be their will.
When a person dies, their estate must be administered. If there is a valid will, the executor named in it applies to the Supreme Court of Western Australia Probate Registry for a grant of probate, which confirms the will and the executor's authority. If there is no valid will, or no willing executor, a close relative (or the Public Trustee) applies for letters of administration. Both processes are governed by the Administration Act 1903 (WA), which also sets the rules of intestacy - the fixed statutory order and shares in which an estate passes when there is no will. Broadly, the estate passes to the surviving spouse or de facto partner and children in set proportions, and only to more distant relatives if none of those survive.
Executors and administrators are fiduciaries. The Trustees Act 1962 (WA) sets out their powers, duties and liabilities, including powers of investment and advancement, and gives the Supreme Court a supervisory role over trustees and any testamentary trusts created by the will. Getting in the assets, paying debts and tax, and distributing correctly is the personal responsibility of the executor or administrator.
A will or an estate distribution can be challenged in two distinct ways. The first is a validity dispute - arguing the will is not valid because the will-maker lacked testamentary capacity, was unduly influenced, was defrauded, or the will was not properly signed and witnessed. The second, and far more common, is a family provision claim under the Family Provision Act 1972 (WA) (formerly the Inheritance (Family and Dependants Provision) Act 1972). This lets an eligible person - a spouse or de facto partner, a child, a former spouse or former de facto partner who was receiving or entitled to maintenance, and in defined circumstances stepchildren, grandchildren and parents - ask the Supreme Court for adequate provision out of the estate where the will (or the intestacy rules) did not properly provide for them. These claims must generally be filed within six months of the grant.
Estate planning is not only about death. The Guardianship and Administration Act 1990 (WA) deals with what happens if you lose capacity during your lifetime. It allows the State Administrative Tribunal (SAT) to appoint a guardian (for personal, lifestyle and medical decisions) and an administrator (for financial and property decisions) for an adult who can no longer make decisions, and it governs enduring powers of attorney and enduring powers of guardianship - the documents you put in place while you still have capacity so that someone you trust can act for you later.
Key Legislation & Courts
KEY WESTERN AUSTRALIA WILLS AND ESTATES LEGISLATION AND COURTS
Legislation:
- Wills Act 1970 (WA) - making, altering and revoking a will; the court's section 32 dispensing power for informal wills
- Administration Act 1903 (WA) - grants of probate and letters of administration; the rules of intestacy
- Family Provision Act 1972 (WA) - claims for adequate provision from an estate (6-month deadline from the grant)
- Guardianship and Administration Act 1990 (WA) - guardians, administrators, enduring powers of attorney and guardianship
- Trustees Act 1962 (WA) - powers, duties and liabilities of executors and trustees
Courts and key bodies:
- Supreme Court of Western Australia - Probate Registry - the court for deceased estates; David Malcolm Justice Centre, 28 Barrack Street, Perth; eCourts Probate online portal
- State Administrative Tribunal (SAT) - lifetime capacity, guardianship and administration, enduring power reviews (no application fee for guardianship/administration matters)
- Public Trustee (WA) - can draft wills and act as executor or court-appointed administrator
What Happens Next — Step by Step
1
Find out whether there is a valid will and who the executor is, and locate the original document - then identify the key date (date of death, or for a dispute, the date the grant was issued), because deadlines run from it.
2
Gather the essentials: the will, the death certificate, and a list of the deceased's assets and debts (bank accounts, property, superannuation, shares, business interests).
3
If you are the executor or next of kin, prepare and lodge the application for a grant of probate or letters of administration through the Supreme Court Probate Registry's eCourts portal - or get help if the estate is complex.
4
If you believe you have been left without adequate provision, work out your eligibility under the Family Provision Act 1972 and the six-month deadline immediately, and get advice well before it expires.
5
Get free information about your WA situation here first, and if you need advice you can rely on, book a fixed-fee consultation with an admitted lawyer.
Mistakes to Avoid
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Missing the six-month deadline for a family provision claim - it runs from the date of the grant, not the date of death, and leave to file out of time is not given lightly.
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Distributing the estate too early - an executor who pays out beneficiaries before the family provision period closes can be personally liable if a claim then succeeds.
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Assuming a home-made or unsigned will is automatically invalid (or automatically valid) - WA's dispensing power can save an informal document, but it is not guaranteed and needs the court's approval.
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Having a beneficiary, or a beneficiary's spouse or de facto partner, witness the will, which can void that person's gift even though the will itself remains valid.
Likely Outcomes
For a straightforward estate, the realistic outcome is a grant of probate (where there is a valid will) or letters of administration (on intestacy) issued by the Supreme Court Probate Registry, typically around six to eight weeks after a complete application is received if it is uncontested. On intestacy, the estate is distributed under the Administration Act 1903 statutory order - generally to the surviving spouse or de facto partner and children in fixed shares, and to more distant relatives only if none survive. A successful family provision claim results in the court ordering further provision for the applicant out of the estate; the amount depends on the size of the estate, the applicant's needs and the strength of competing claims, and provision is reduced or refused where the applicant is already adequately provided for. Claims filed outside the six-month limit are usually barred unless the court grants leave to file out of time, which is not given lightly. A will may be declared invalid in whole or part for lack of capacity, undue influence, fraud or improper execution - though even then the court may admit an informal document under the Wills Act 1970 dispensing power. In lifetime matters, SAT may appoint a guardian and/or administrator, or revoke or vary an enduring power where it is being misused or the donor lacked capacity when it was made.
Grant of probate / letters of administration
Issued by the Supreme Court Probate Registry, typically 6-8 weeks after a complete uncontested application, giving the executor or administrator authority to deal with the estate.
Intestacy distribution
With no valid will, the estate passes under the Administration Act 1903 statutory order - generally to the surviving spouse or de facto partner and children in fixed shares.
Successful family provision claim
The Supreme Court orders further provision out of the estate for an eligible applicant, sized to their needs and competing claims; reduced or refused if already adequately provided for.
Will declared invalid
A will can be set aside in whole or part for lack of capacity, undue influence, fraud or improper execution - though the court may still admit an informal document under the dispensing power.
Legal Aid in Western Australia
Legal Aid Western Australia (legalaid.wa.gov.au) is the main free service, but be realistic about its limits: legal aid grants are means- and merit-tested and are heavily focused on criminal, family and child-protection matters, so funding for will disputes or family provision claims is uncommon. What is genuinely useful is its free Infoline and online resources for general guidance. Beyond Legal Aid, Community Legal Centres across WA offer free initial advice, the Public Trustee (WA) provides will-drafting and estate administration services (with fees scaled to the estate), and the Supreme Court Probate Registry publishes self-help guides and forms for people doing an uncontested grant themselves. SAT charges no application fee for guardianship and administration matters. For most contested estate work, though, you will need private representation - which is why getting clear information early, and a fixed-fee consultation if you decide you need one, matters.
How Legal Hotline Can Help
We are a free, 24/7 legal-information service. We can explain, in plain English, how wills and estates work in Western Australia - what a grant of probate involves, how the intestacy rules apply, who can bring a family provision claim, and what the six-month deadline means for you - so you understand your situation and your options before you spend a cent. That is legal information, not legal advice: we do not give advice tailored to your specific circumstances, and we are not a law firm. When your situation needs advice you can act on - contesting a will, defending an estate, getting a complex grant, or sorting out a dispute - we can book you a fixed-fee consultation with an admitted Australian lawyer, so you know the cost up front. You can use the free information on its own, or as a way to arrive at that consultation already knowing the right questions to ask.
Frequently Asked Questions — Wills & Estates in Western Australia
What makes a will valid in Western Australia?
Under the Wills Act 1970 (WA), you must generally be at least 18, the will must be in writing, and you must sign it in the presence of two witnesses who are both present at the same time and who also sign. A beneficiary, or a beneficiary's spouse or de facto partner, should not act as a witness, as it can void their gift. The Supreme Court can also recognise an informal document as a will using its section 32 dispensing power in limited circumstances.
What happens if someone dies without a will in WA?
They die 'intestate', and their estate is distributed under the statutory order in the Administration Act 1903 (WA). It generally passes to the surviving spouse or de facto partner and children in fixed shares, and only to more distant relatives if none of those survive. Someone - usually a close relative or the Public Trustee - must apply to the Supreme Court for letters of administration before the estate can be dealt with.
How long does probate take in Western Australia?
For an uncontested estate, a grant of probate or letters of administration is typically issued by the Supreme Court Probate Registry around six to eight weeks after a complete application is received. Applications can be lodged through the eCourts Probate online portal. Errors in the paperwork, missing documents or any contest will extend that timeframe considerably.
Who can contest a will in WA, and how?
Eligible people under the Family Provision Act 1972 (WA) include a spouse or de facto partner, a child, a former spouse or former de facto partner who was receiving or entitled to maintenance, and in defined circumstances stepchildren, grandchildren and parents. They can ask the Supreme Court for adequate provision from the estate where the will or intestacy did not properly provide for them. This is separate from challenging whether the will is valid in the first place.
What is the deadline to make a family provision claim?
You generally have six months from the date the grant of probate or letters of administration is issued to file a family provision claim under the Family Provision Act 1972 (WA). Claims filed late are usually barred unless the court grants leave to file out of time, which is not given lightly. Because the clock runs from the grant, you should act well before it expires.
Can a will be challenged because the person lacked capacity?
Yes. A will can be challenged on grounds such as lack of testamentary capacity, undue influence, fraud, or improper signing and witnessing. If proven, the Supreme Court can declare the will invalid in whole or in part. Even so, the court may admit an earlier valid will, or recognise an informal document under the section 32 dispensing power in the Wills Act 1970, so the outcome is not always intestacy.
What does an executor have to do, and can they be personally liable?
An executor must locate the will, obtain probate, collect the assets, pay the deceased's debts and any tax, and distribute the estate to the beneficiaries - with their powers and duties shaped by the Administration Act 1903 and the Trustees Act 1962 (WA). They are personally liable if they distribute wrongly or too early, for example before the six-month family provision period closes. Getting advice before distributing is sensible.
What is the difference between probate and letters of administration?
Probate is the grant the Supreme Court issues to the executor named in a valid will, confirming the will and the executor's authority. Letters of administration are issued where there is no valid will, or no willing or available executor - in which case a close relative or the Public Trustee (WA) is appointed administrator. Both authorise the holder to deal with the deceased's estate.
What happens to my affairs if I lose capacity while alive?
That is governed by the Guardianship and Administration Act 1990 (WA). If you have made an enduring power of attorney and an enduring power of guardianship while you had capacity, the people you chose can manage your finances and personal decisions. If you have not, the State Administrative Tribunal (SAT) can appoint an administrator and/or guardian for you - and SAT charges no application fee for guardianship and administration matters.
Do I need a lawyer to apply for probate in WA?
Not always. The Supreme Court Probate Registry publishes guides and forms, and for a simple, uncontested estate with a clear will and a cooperative family, some executors complete the application themselves through the eCourts portal. A lawyer is strongly recommended where the estate is large or complex, holds a business or interstate assets, where there is any dispute, or where you are worried about personal liability as executor.
For general information about Wills & Estates in Australia, visit our Wills & Estates Legal Hotline Australia page.