When someone close to you dies and the will doesn’t seem right, it’s easy to feel stuck. Do you challenge the will itself? Do you ask for a bigger share? And does it matter which one you do first?
It does. In Western Australia, these are two different legal paths, with different timing, and getting the order wrong can cost you time, money and sometimes the outcome you were hoping for.
Path one: you think the will itself isn’t valid
This is for situations where you believe something is wrong with the will, not just with how much you were left. Common reasons include the will wasn’t signed or witnessed properly, the person who made the will didn’t have the mental capacity to understand what they were signing (called testamentary capacity), someone pressured or manipulated them into it (called undue influence), or a more recent will exists that should replace this one.
If this sounds like your situation, you (or your lawyer) can lodge what’s called a caveat with the Supreme Court of Western Australia. Essentially, a caveat is a formal notice that pauses the grant of probate (the court’s official approval that lets the executor act on the will) while the concern is looked into. A caveat lasts six months, though it can be renewed, withdrawn, or resolved by the court sooner. Once it’s lodged, the executor has one month to respond, and if the matter can’t be sorted out between the parties, it goes before the Registrar to decide.
Here’s the part that catches people out: a caveat only works before probate is granted. Once probate has been granted, it’s too late to lodge one.
Path two: you accept the will is valid but think your share isn’t fair
This is a different question entirely. You’re not saying the will is invalid, you’re saying it doesn’t provide enough for you, given your relationship with the person who died and your circumstances. In WA, this is called a family provision claim, made under the Inheritance (Family and Dependants Provision) Act 1972 (WA).
Eligible applicants include a spouse or de facto partner, certain former partners, children, some step-children and grandchildren, and parents. The court looks at things like your relationship with the person who died, your financial position, and the needs of other beneficiaries.
The key timing fact: you have six months from the date probate (or letters of administration, if there’s no will) is granted to bring this claim. Extensions are possible but rare, so this deadline matters.
Why the order matters
If you’re actually planning a family provision claim, lodging a caveat first isn’t the right move, and it can work against you. Caveats are for disputing whether a will is valid, not whether it’s fair. Using the wrong tool, or using it at the wrong time, can waste the time you need to get the right claim moving, and add unnecessary cost.
This is exactly why it’s worth getting advice early, before you lodge anything. A short conversation can tell you which path actually fits your situation, and make sure you don’t miss a deadline while you’re still working it out.
Luckily, that’s something we can help with. If you’re dealing with a will that doesn’t sit right, contact us at Joss Legal on (08) 6559 7480.