Do I need a will in Western Australia?

Yes. If you die without a will in Western Australia, your estate is distributed according to the Administration Act 1903 (WA), which may not reflect your wishes. A will allows you to choose who receives your assets, appoint an executor and, if you have children, nominate a guardian. Without a will, the law decides — not you.

What is an Enduring Power of Attorney in Western Australia?

An Enduring Power of Attorney (EPA) is a legal document that authorises a person you choose (your attorney) to make financial and legal decisions on your behalf if you lose capacity. In Western Australia, EPAs are governed by the Guardianship and Administration Act 1990 (WA). Unlike an ordinary power of attorney, an EPA continues in force even if you become mentally incapacitated.

What is an Enduring Power of Guardianship in Western Australia?

An Enduring Power of Guardianship (EPG) is a legal document that appoints a person to make personal, lifestyle and treatment decisions on your behalf if you lose capacity. This includes decisions about where you live and the medical treatment you receive. It is different from an Enduring Power of Attorney, which covers financial matters only.

When is probate required in Western Australia?

Probate is required in Western Australia when the deceased held real property in their sole name, or when financial institutions require it before releasing funds. Each bank sets its own threshold — Westpac, for example, requires probate for combined account balances of $100,000 or more. A Grant of Probate is issued by the Supreme Court of Western Australia and confirms the executor's authority to administer the estate.

What is a testamentary trust?

A testamentary trust is a trust created by your will that comes into effect after your death. It holds assets for the benefit of your beneficiaries and can provide protection from divorce, bankruptcy and creditor claims. Testamentary trusts can also be tax-effective, particularly where income is distributed to minor beneficiaries.

What is an Advance Health Directive in Western Australia?

An Advance Health Directive (AHD) is a legal document that records your decisions about the medical treatment you would want — or not want — if you became unable to communicate. It is governed by the Guardianship and Administration Act 1990 (WA) and gives health professionals and family members clear direction about your wishes.

What happens if someone dies without a will in Western Australia?

If a person dies intestate (without a will) in Western Australia, their estate is distributed according to the Administration Act 1903 (WA). The estate passes to the surviving spouse, children, parents or other relatives in a fixed order set by law. If there are no eligible relatives, the estate passes to the Crown. A family member must apply to the Supreme Court for Letters of Administration to be authorised to administer the estate.

How much does a will cost at Crystal Lawyers?

Crystal Lawyers charges fixed fees for all estate planning services, including will preparation. Fees are transparent and agreed in advance — there are no hourly billing surprises. Contact Crystal Lawyers at val@crystallawyers.com.au or 0421 145 637 to discuss your matter and receive a fee estimate.

Val Antoff is the principal solicitor of Crystal Lawyers, a Perth-based law firm focusing exclusively on estate planning and the administration of deceased estates in Western Australia. Val holds a Bachelor of Laws from the University of New England and advises clients on wills, testamentary trusts, enduring powers of attorney, probate and deceased estate administration. Crystal Lawyers is based in Como, Perth.

Where is Crystal Lawyers located?

Crystal Lawyers is located at Suite 1, 3 Barker Avenue, Como, Western Australia 6152. The firm also sees clients at 136 Stirling Highway, Nedlands, Western Australia 6009. You can contact the firm by phone on 0421 145 637 or by email at val@crystallawyers.com.au.

Can a Statutory Declaration Protect Your Estate in Western Australia?

Val Antoff
44 minutes ago
7 min read

You've worked hard your whole life. You've made your Will. You've thought carefully about who should receive what — and why. But what happens when someone challenges those decisions after you've died and you're no longer there to explain yourself?

In Western Australia, any eligible person can make a claim against your estate under the Family Provision Act 1972 (WA). That includes your current spouse or de facto partner, a former spouse or partner receiving maintenance, your children — including adult children you may not have seen for years — grandchildren and stepchildren in certain circumstances. And when a claim is made, a court will hear from the claimant. It will not hear from you.

Unless, that is, you planned ahead.

The Problem With Dying Silent

Family provision claims are unusual in one striking way: the person whose estate is being challenged is not around to give evidence. The claimant tells their story — about a difficult relationship, a parent who was absent, a family that fell apart — and the court listens. The executor can call witnesses, but those witnesses only know part of the picture. Nobody knows the full story the way you do.

This creates an obvious imbalance. A son who walked away from the family twenty years ago can stand before a court and describe a relationship in whatever terms he chooses. A daughter who was estranged by her own choice can paint a picture of neglect. And you — the person who lived through it, who tried to make contact, who provided financially over the years — cannot say a single word.

The person best placed to explain why a Will was made the way it was is the one person who can no longer give evidence.

There is, however, a way to give yourself a voice. It is called a testamentary explanatory statutory declaration — and it is one of the most underused tools in estate planning.

What Is a Testamentary Statutory Declaration?

A testamentary explanatory declaration is a statutory declaration — a formal, witnessed, legally binding document — in which you record, in your own words, the reasons for the decisions you have made in your Will.

You make it while you are alive, in good health and of sound mind. You sign it before an authorised witness — a Justice of the Peace or a lawyer. It is stored with your Will. And if anyone challenges your estate after your death, your executor can produce it in evidence.

Under section 21A of the Family Provision Act 1972 (WA), courts may receive statements made by a deceased person — including written statements — as evidence of the reasons for a disposition and the nature of their relationships. The law gives your estate the ability to put your account before the court, even after you have died. A testamentary statutory declaration is how you use that opportunity.

What a statutory declaration can record

The history of your relationship with each family member you have excluded or given limited provision to
When and why contact broke down — and who was responsible
Any attempts you made to restore the relationship
Financial help you gave during your lifetime — gifts, loans, paying bills
Any conduct by a family member that you considered to have damaged the relationship
Your reasons — in your own words — for making the Will the way you did.

When Does It Work?

The most useful example from Western Australian courts is a 2022 case known as AB v FGH. A mother had made a statutory declaration explaining why she had left the bulk of her estate — worth more than $6.5 million — to one of her daughters, largely excluding another. The excluded daughter made a claim. The court considered the declaration carefully.

Even in that case the excluded daughter still received a substantial sum. This shows both the power and the limits of the document. The declaration was taken seriously and weighed as evidence — but the court still applied its own judgment about what was fair, given the daughter's circumstances and financial need.

A clearer example of a declaration succeeding comes from New South Wales, where the law works on the same principles. In the 2023 case of Plummer v Montgomery, a woman left a detailed written statement explaining why she had excluded two adult stepchildren from her estate. The stepchildren brought a claim. The court read the statement, weighed it against all the evidence and dismissed both claims. The court said it had given weight to the deceased's wishes as expressed not only by her Will but also by her written statement.

The Double-Edged Sword

Here is the part your lawyer should tell you plainly: a testamentary statutory declaration is not a magic shield. Used well, it is a powerful tool. Used carelessly, it can work against you.

When a statutory declaration can backfire

Courts are experienced at reading documents written by people who are angry or one-sided. A declaration that reads as a personal attack — full of sweeping accusations, exaggerated complaints and no acknowledgment of the writer's own role in a broken relationship — will be given little weight. In some cases, it can make the court more sympathetic to the claimant.

In a 2022 case called Dodd v Dodd, a father had made two written statements explaining why he had excluded his son. The court found the statements one-sided and noted they did not acknowledge the father's own responsibility for the breakdown of the relationship. The son received $520,000 from an $800,000 estate, and the statements did not assist the estate's position.

Once a statutory declaration exists, your executor may be required to produce it in any court proceedings — even if it becomes clear the document will not help the estate. A statutory declaration cannot simply be withheld if it turns out to be unhelpful. This is why the quality of the drafting matters.

There is also a risk if the declaration becomes outdated. If you write it when a relationship is at its worst — and then the relationship improves — a court reading the old declaration may find it no longer reflects what actually happened. An out-of-date declaration can do more harm than good. It needs to be reviewed whenever your circumstances change.

A third risk arises where a family member who stands to benefit was involved in giving instructions for the declaration. Courts are alert to the possibility that a beneficiary may have influenced what the testator said. If that influence can be shown, the court may discount the declaration significantly. Instructions must come from you alone, in a private conversation with your lawyer.

What Makes a Statutory Declaration Effective?

The difference between a declaration that helps and one that hurts is largely in the drafting. Courts consistently look for the following.

The hallmarks of a strong statutory declaration

Specific facts — dates, amounts, incidents — not generalisations
A measured, regretful tone rather than anger or blame
An honest acknowledgment of your own role, where that is relevant
Objective evidence backing up what you say — documents, records, bank receipts
A clear record of financial help given during your lifetime
A clear account of who ended contact and what you did to try to restore it
Proportionality — focused and concise, not a sprawling indictment.

Courts give weight to declarations that read as the honest account of a reasonable person who made considered decisions and is explaining them calmly. They discount declarations that read as settling scores.

Does It Guarantee My Wishes Will Be Upheld?

No — and any lawyer who tells you otherwise is not giving you the full picture.

Western Australian courts ask what a wise and just person in the testator's position would have done, given everything that is known. A well-crafted statutory declaration can shift that analysis in your estate's favour — but it cannot override a finding that a family member has been left without adequate provision and is in real financial need.

A statutory declaration gives the court the full picture. It puts your account in the room. It reduces the risk that only one side of the story is heard. In many cases — particularly where the relationship broke down for clear reasons and where you can point to specific prior provision — it can be the difference between a claim succeeding and failing.

A testamentary statutory declaration is not about winning an argument after you've gone. It's about making sure the court has the whole story, not just one half of it.

Should You Have One?

Consider a statutory declaration seriously if any of the following apply.

You may benefit from a statutory declaration if

You have an adult child you are not providing for, or providing for unequally
You have been estranged from a family member for any period of time
You have already given significant financial help to someone during your lifetime
A family member has behaved in a way that damaged the relationship
You are concerned that someone might challenge your Will after your death
Your estate is large enough to make a court challenge financially worthwhile.

A statutory declaration is best prepared at the same time as your Will — while the facts are fresh, while your capacity is not in doubt, and while it is clearly your own independent decision. It should be reviewed whenever your Will is reviewed and updated if your circumstances change.

It should be prepared with a lawyer who takes the time to understand your full family history, asks careful questions, and drafts the document in a way that is measured, specific and honest. The goal is not to condemn anyone. It is to give the court the information it needs to understand why you made the decisions you made.

A Final Word

Your Will is your last act of care for the people you love. A testamentary statutory declaration is your last act of honesty — a record that says: here is what happened, here is what I provided, here is why I made the decisions I did. Done well, it is one of the most useful things you can do to protect your estate and the people you have chosen to benefit from it.

Done poorly, it can undermine everything you worked for.

The difference is in the preparation. If you think a statutory declaration might be right for your situation, we would be glad to talk it through with you.

General information only. This article is intended to provide general information about estate planning in Western Australia and does not constitute legal advice. Every family's situation is different. You should obtain advice specific to your circumstances before making any decisions about your estate. Liability limited by a scheme approved under Professional Standards Legislation. Crystal Lawyers, Como WA.