The Act affects four principal groups: (1) eligible applicants, (2) personal representatives (administrators and executors), (3) beneficiaries under wills or intestacy, and (4) the Crown.

Eligible applicants are exhaustively listed in s.7(1). They comprise:

• The spouse or de facto partner living with the deceased immediately before death (s.7(1)(a)).
• A former spouse or former de facto partner who was receiving or entitled to receive maintenance at the date of death, whether by court order or agreement (s.7(1)(b)).
• A child alive at death or born within 10 months thereafter (s.7(1)(c)).
• A grandchild who was wholly or partly maintained by the deceased immediately before death, or whose parent (a child of the deceased) predeceased the deceased, or who was born within 10 months after death in the same circumstances (s.7(1)(d)).
• A stepchild who was being maintained wholly or partly or was entitled to be maintained by the deceased immediately before death (s.7(1)(ea)), or a stepchild where the deceased received or was entitled to receive property from the estate of the stepchild's parent (otherwise than as a creditor) exceeding the prescribed amount (s.7(1)(eb)). Applications by stepchildren are restricted to deaths on or after the commencement of the 2011 amending Act (s.7(2A)).
• A parent where the relationship was admitted by the deceased (being of full age) or established in the deceased's lifetime (s.7(1)(e)).

Section 4(1) expands "child" and "grandchild" to include illegitimate children. However, s.4(4) provides that a parent-child relationship (and any relationship traced through it) is recognised only if parentage was admitted or established against the parent in the parent's lifetime; this does not apply to relationships established under the Artificial Conception Act 1985 (s.4(4a)). "Stepchild" is defined by reference to the date the deceased married or entered a de facto relationship with the person's parent.

Personal representatives are affected in their capacity as administrators (defined in s.4(1) to include executors, administrators, the Public Trustee, and Court-appointed administrators under s.18). They must be served with every application (s.12(1)), are protected from liability for distributions made without notice of claims (s.20(1)-(3)), may make urgent distributions without fear of later disturbance (s.11), and may apply to vary orders that cause hardship (s.15(1)(a)). They are also subject to removal or substitution for abuse of office or dereliction of duty (s.18).

Beneficiaries under the will or intestacy have their entitlements potentially reduced. They are entitled to be heard, may oppose applications, and may themselves apply to vary orders under ss.15 and 16. The burden of any provision order falls rateably on their interests unless the Court orders otherwise (s.14(2)).

The Crown is bound by the Act (s.6A), both in right of the State and, so far as legislative power permits, in all other capacities. This ensures that where the State is a beneficiary (for example on ultimate intestacy) it is subject to the Court's jurisdiction.

The Act creates few positive duties but confers significant rights and negative protections.

Applicants have the right to apply within six months after the administrator becomes entitled to administer the estate in Western Australia (s.7(2)(a)). The Court may grant leave to apply out of time if the justice of the case requires it (s.7(2)(b)); such a motion may be brought even after the six-month period has expired (s.7(3)). Parallel timing rules apply to undisclosed-property applications (s.6(7)-(8)). Applicants also have the right to have their application treated as brought on behalf of all possible claimants, with the limitation period running for all persons served or directed to be represented (s.12(2)).

The Court has the right and duty to form an opinion on the adequacy of provision (s.6(1)) and, if satisfied of inadequacy, the discretion to order such provision as it thinks fit. It may attach conditions, refuse relief on character or conduct grounds, or for any other sufficient reason (s.6(3)). It may order interim relief (s.7A), class funds (s.13), variation of orders (ss.15, 16), and consequential directions (s.14(7)). In exercising these powers the Court must be "reasonably satisfied" (s.4(3)); a fact is proved if established to the Court's reasonable satisfaction (s.4(2)).

Personal representatives have the right to distribute without inquiring into possible claims under the Act (s.20(2)) and are protected from action if they distribute without notice of an application or intended application (s.20(1), (3), (5)). A written consent or waiver by a capacious potential applicant protects the administrator from subsequent claims (s.20(4)). Administrators may apply for variation of orders causing hardship (s.15) and must be served with variation applications (s.15(2), s.16(2)).

Beneficiaries have the right to be heard on applications that may affect them. Once an order is made, they enjoy the protection that the order cannot be assigned before it is made (s.19) and that the Court must have regard to hardship before varying it (s.15(1)).

Evidentiary rights are expanded by s.21A. Statements (including representations of fact) made by the deceased are admissible as evidence of any fact they would have been competent to prove if alive, subject to the detailed safeguards in that section. The Court may draw inferences from the circumstances in which the statement was made when assessing admissibility and weight (s.21A(7)-(8)).

The Act creates no criminal offences or monetary penalties. Enforcement is exclusively civil and remedial. The principal sanction is the Court's power to make orders that redistribute estate assets, including by lump sum, periodic payments, or by constituting a class fund held on trust (s.13). Failure to comply with an order would constitute contempt of court, but the legislation itself contains no express contempt or penalty provisions.

Costs are at the discretion of the Court, which may order them to be paid out of the estate or by any party (s.14(6)). This discretionary costs jurisdiction is the primary fiscal incentive for parties to act reasonably.

Where an administrator is guilty of abuse of office or dereliction of duty, the Court may remove and replace that administrator (s.18). The replacement administrator receives all property, rights, powers and liabilities without further conveyance (s.18(2)).

Protection provisions operate as defences rather than penalties. Sections 11 and 20 shield administrators from actions for breach of trust or devastavit where distributions are made without notice or for urgent purposes. These immunities are lost if notice of an application has been received and not lapsed under s.20(5).

The Act is not a code. It expressly cross-references and sits within a matrix of succession, trust and evidence legislation.

It repealed the Testator’s Family Maintenance Act 1939 (s.3) and continues orders and proceedings commenced under that Act (s.5(3)). It interacts with the Administration Act 1903 via the definition of "administration" and "administrator" (s.4(1)) and the power to appoint administrators (s.18).

The most frequent interaction is with the Trustees Act 1962. Section 8 permits the Court to make a s.65 order in lieu of a family provision order where the estate has been distributed. Section 9 requires regard to the protections in s.65(8) of that Act. Class funds may be created and trustees appointed with powers under s.89 of the Trustees Act 1962 (s.13(4)). Orders may exonerate portions of the estate and give directions as to investment (s.17).

The Supreme Court Act 1935 supplies the rule-making power for practice and procedure (s.21). The Evidence Act 1906 is supplemented by the specific hearsay exceptions in s.21A(13).

Relationship recognition interacts with the Artificial Conception Act 1985 (s.4(4a)) and earlier reforms in the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 and Acts Amendment (Equality of Status) Act 2003 that removed distinctions based on illegitimacy and sexual orientation.

The Act binds the Crown (s.6A) and therefore interacts with any State or Commonwealth legislation under which the Crown might otherwise take property by escheat or as bona vacantia.

Section 4(4) qualification on parent-child relationships must be read with the Births, Deaths and Marriages Registration Act 1998 and any Commonwealth family law parentage presumptions.

The most significant recent amendments were introduced by the Inheritance (Family and Dependants Provision) Amendment Act 2011 (assented 25 October 2011, commenced 16 January 2013). These changes:

• Renamed the Act from Inheritance (Family and Dependants Provision) Act 1972 to Family Provision Act 1972 (s.1 amendment).
• Inserted s.6A to bind the Crown.
• Expanded and restructured s.6 to include the undisclosed-property jurisdiction (new subsections (5)-(8)) and clarified that the Court is not bound to assume intestacy laws make adequate provision (s.6(2)).
• Inserted the interim order power (s.7A).
• Substantially rewrote s.7 to add stepchild categories (ea) and (eb), to update language around de facto partners, and to restrict stepchild claims to post-commencement deaths (s.7(2A)).
• Amended protection and notice provisions (ss.11, 12, 19, 20).
• Inserted the comprehensive evidentiary regime in s.21A and the regulation-making power in s.21B to prescribe the monetary threshold for s.7(1)(eb) claims.

These amendments were driven by a desire to modernise the law, recognise contemporary family structures (including de facto and step-relationships), provide flexibility where assets were not initially disclosed, and give the Court clearer procedural tools. The 2017 Statutes (Minor Amendments) Act made only trivial corrections.

Uncommenced provisions in the Evidence Act 2025 and Assisted Reproductive Technology and Surrogacy Act 2025 will, when proclaimed, further update s.21A and relationship definitions.

Because the statute supplies the text and no external cases may be invented, controversies must be derived from textual ambiguities and structural tensions visible on the face of the Act.

A recurring textual difficulty is the meaning of "adequate provision for the proper maintenance, support, education or advancement in life" in s.6(1). The Act supplies no definition, leaving the Court to assess each applicant's financial position, needs, the size of the estate, and the competing claims of others. The "proper" qualifier introduces a moral or normative dimension that has generated divergent judicial approaches, although all must be grounded in the statutory language.

The s.4(4) limitation on recognition of parent-child relationships unless admitted or established in the deceased's lifetime creates a bright-line rule that can produce harsh results where parentage is discovered only after death. The carve-out for artificial conception (s.4(4a)) highlights the policy choice to treat some but not all non-traditional relationships more generously.

Stepchild claims under s.7(1)(eb) depend on a prescribed amount set by regulation (s.21B). Until the regulation is made the provision remains inoperative, illustrating the Act's dependence on subordinate legislation.

The undisclosed-property power in s.6(5)-(8) raises questions of finality. An order that has been made can be revisited if property worth enough to "materially affect" the outcome was not revealed. The Act does not define "materially affected", leaving scope for argument about the threshold.

The interaction between the six-month time limit (s.7(2)) and the power to grant leave "if the justice of the case requires" (s.7(2)(b)) has been a perennial source of procedural dispute. Section 7(3) permits motions for leave at any time, potentially many years after death, raising issues of estate administration finality and prejudice to beneficiaries who may have changed their positions.

Section 21A's hearsay regime is detailed but contains internal limitations. Subsections (9)-(11) restrict credibility and inconsistency evidence to matters that would have been admissible in cross-examination had the deceased been a witness. The Court must weigh recency, incentive to misrepresent, and other circumstances (s.21A(8)), creating a mini-trial on admissibility and weight within the main proceeding.

The protection provisions in s.20(5) (lapsing of notice after three months if no application filed, or 12 months from entitlement to administer) can trap unwary claimants, yet nothing prevents a fresh application after lapse provided it is within time or leave is granted. This produces a trap for the unwary that many practitioners do not fully appreciate.

Most practitioners assume that once probate has been granted the six-month clock in s.7(2)(a) starts immediately. In fact the clock starts when "the administrator becomes entitled to administer the estate of the deceased in Western Australia". Where there is a delay in obtaining a grant, or where the Public Trustee files an election to administer, the time may run later than expected. Conversely, if an executor delays applying for probate, the entitlement may arise earlier than the grant date.

The definition of "stepchild" in s.4(1) is deceptively narrow: the person must have been alive on the date the deceased married or entered the de facto relationship with the parent. A child born after that date to the new partner is not a stepchild for the purposes of the Act.

Section 7(1)(eb) stepchild claims require the deceased to have received or been entitled to receive property from the estate of the stepchild's parent "otherwise than as a creditor". The value at the parent's death must exceed the prescribed amount. Until the Governor makes a regulation under s.21B there is no prescribed amount; the provision is therefore currently inert. Many solicitors still plead such claims without realising the monetary gateway is missing.

Interim orders under s.7A are not freestanding. The Court must ultimately determine the principal s.6(1) application by confirming, revoking or altering the interim order. An applicant who obtains generous interim relief may find the final order is less favourable once all evidence is heard.

The s.20(4) written waiver is a powerful but under-used shield. A capacious adult who writes to the administrator consenting to a proposed distribution or stating they will not claim cannot later sue the administrator. The waiver need not be in any particular form provided it is in writing and clearly communicates consent or non-intention to claim.

Section 19 voids any mortgage, charge or assignment of a prospective family provision order given before the order is actually made. This trap catches banks and litigation funders who attempt to take security over a potential claim before judgment.

The evidentiary regime in s.21A(12) states that it applies "notwithstanding the rules against hearsay" yet "does not make admissible a statement of a deceased person which is otherwise inadmissible". This circularity requires careful analysis: the section creates a statutory exception but does not cure other exclusionary rules such as relevance or opinion.

Finally, the rateable burden rule in s.14(2) is subject to the Court's power to order otherwise. Many consent orders overlook this and simply impose the burden on residue, which can produce unexpected shortfalls for residuary beneficiaries if specific gifts are large.

Compliance for personal representatives begins with early identification of potential claimants under s.7. Administrators should obtain statutory declarations from persons who might claim, or written waivers under s.20(4). Where doubt exists, an administrator may seek directions from the Court under the Trustees Act 1962 or commence an application for an order under s.8.

Distributions should not occur until at least six months after the administrator becomes entitled to administer, unless all potential claimants have provided written waivers or the Court has granted leave to distribute. Urgent distributions for maintenance under s.11 are protected even if an application is later filed.

When an application is served, the administrator must file an affidavit of assets and liabilities promptly. Legal advice should be obtained before any distribution after notice of claim.

For applicants, the key is timely filing. Counsel should be briefed to prepare evidence of need, the deceased's moral duty, and the size of the estate. Evidence of the deceased's statements should be marshalled with s.21A in mind: direct testimony of the making of oral statements is preferred; documentary statements require authentication.

Practitioners acting for beneficiaries should consider character or conduct disentitling factors under s.6(3) and gather evidence of the applicant's financial resources. Where an order has already been made, monitor for changed circumstances that might justify variation under s.15 or s.16.

All parties must remember that the Act treats the application as brought on behalf of all possible claimants once filed (s.12(2)). Service on other eligible persons may therefore be required if the Court so directs.

Compliance with the regulation under s.21B is impossible until it is made; practitioners should monitor the WA Government Gazette for the prescribed amount for s.7(1)(eb) claims.

In all cases, the paramount practical rule is to treat every estate as potentially subject to a family provision claim until all eligible persons have either released their rights in writing or the limitation period has expired without application and without prospect of successful leave application. Only then can final distribution occur with confidence.