A person cannot avoid the operation of the Family Provisions Act by putting a clause in their Will to the effect that the Act is not to apply or by providing in the Will that a beneficiary who challenges the Will is not to receive benefit under it. However, in WA (unlike NSW for example) property can be protected from a challenge under the Family Provisions Act by ensuring that it does not form part of the estate of the deceased at the date of death.
Trusts can be used to retain control of the relevant assets during the deceased’s life and then to pass the benefit of the asset to the intended recipient’s without fear of a challenge. The assets held by a trust are not legally owned by the deceased who controlled the trust.
Alternatively, the testator could simply gift the property to the intended beneficiary before the death of the testator.
Another way of avoiding the operation of the Family Provisions Act with respect to a particular asset is to transfer the asset so it is held as joint tenants between the testator and the intended beneficiary. On the death of the testator, their half interest in the asset would go to the beneficiary without becoming part of the estate of the testator and this asset would not be subject to a challenge.
I have acted in many actions over the years for both applicants and defendants and they almost always settle at a court appointed mediation, quite early in proceedings.
This means that the legal costs are usually only a fraction of what they would be if the matter went to trial. The fact that Mediation Registrars and lawyers have become so skilled at settling disputes is a principle reason why only about 3% to 5% of all actions commenced in the Supreme Court end up going to trial.