Challenging a Will


In Tasmania, whether a Will is valid depends on whether or not the Will complies with certain criteria or requirements pursuant to the Wills Act 2008 (Tas).

Grounds/Reasons for Challenging a Will in Tasmania

According to section 8 of the Wills Act, a Will must be in writing and must be signed by the testator (the person making the Will) on the presence of 2 other witnesses who sign the Will.

There are a number of critical requirements for a valid Will including that:

  1. The person making the Will must be over the age of 18;
  2. The Will is documented and signed in the presence of two or more witnesses. However, if a Will has not been signed in accordance with the formal requirements, the Court may accept the Will as an ‘informal Will’ but only in special circumstances.
  3. The Will is made after marriage, unless it was specifically made in contemplation of marriage;
  4. The Will reflects the testamentary intentions of the will maker.

In addition to the above, some of the other grounds upon which you can challenge a Will include the following:

  1. The Will maker was unduly influenced by another party;
  2. The Will maker lacked testamentary capacity;
  3. The Will was forged;
  4. The Will maker did not know or approve of the contents of the Will.

If you wish to challenge the validity of a Will, you must have:

  1. Standing(see Who can Challenge a Will).
  2. Sufficient Evidence– For example, if you are alleging that the Will maker did not have the requisite capacity to make a Will, you will need strong medical evidence to support that. If you are alleging a third party unduly influenced the Will maker, you will need actual and direct evidence of that influence.

If you believe you have grounds to challenge a Will, please contact Armstrong Legal to obtain advice.

How to Challenge a Will in TAS?

If a person wishes to challenge a Will, a caveat should be filed on the estate in the Probate Registry of the Supreme Court to prevent the issue of a grant. When a caveat is filed, the person challenging the Will must ensure that they have a proper basis for filing the caveat.

Prior to filing a caveat, you need to ensure that probate has not yet been granted on the Deceased estate. You can contact the Supreme Court of Tasmania to ascertain this information.

After the caveat is filed, the Court will notify the Executor.

The person challenging the Will must provide grounds for his or her objections to the Grant (see Grounds for challenging a Will) within 28 days of the notice being given by the Court. If not, the caveat will lapse.

Subsequently, the person challenging the Will must commence court proceedings within 28 days of the objections being filed in Court.

If that occurs, then the Executor must file a Notice of Appearance in Court.

The person challenging the Will must file a Statement of Claim which sets out the particulars of their claim and the facts that they rely upon. The Executor Defendant must file a counterclaim which will include their defence.

Once the defence is filed, then the Court will set the matter down for a directions hearing. At the directions hearing, a timetable will be made for the parties to file affidavit of evidence and for the filing of expert evidence. Subpoenas may need to be issued.

If the matter settles at a mediation or before a Trial, then the parties will usually agree for the caveat to be withdrawn.

However, if the matter proceeds to a Trial hearing, the Judge will need to hear the evidence and then decide the outcome of the matter and ultimately what happens to the caveat.

If you believe you have a basis for challenging a Will, please contact us on 1300 038 223 before it is too late as the granting of probate may prevent you from challenging a Will.

Who can Challenge a Will in Tasmania?

In Tasmania, you can Challenge a Will if you have “standing” in the estate of a deceased person.

Unless you have “standing”, you are not entitled to challenge the validity of a Deceased’s Will.

“Standing” for the purposes of challenging a Will means one of the following:

  1. A named beneficiary in a prior Will of the deceased; or
  2. You are entitled to a share of the deceased’s estate under the laws of intestacy in Tasmania. Intestacy is the situation where the deceased died without a Will.

Unless you fall into one of the above categories, then you are unable to challenge a Deceased person’s Will in Tasmania.

If you would like to discuss whether you are able to challenge a Deceased person’s Will Tasmania, please contact one of our lawyers so that we can provide you with advice.

Challenging an Executor of a Will

In Tasmania, an Executor has specific obligations and duties to uphold when administering a Deceased estate.

An Executor’s primary obligations and duties include the following:

  • To arrange personal and funeral arrangements;
  • To arrange to obtain the grant of probate of the Will;
  • To administer the estate in accordance with the Will;
  • To ensure creditors are paid, arrange preparation and lodgement of the deceased’s personal and estate tax returns;
  • Then to distribute the balance of the estate to the beneficiaries in accordance with the terms of the Will, including establishing any trusts pursuant to the Will;
  • To keep proper accounts; and
  • To invest estate assets where applicable.

Generally, a beneficiary has no input in how an estate is administered and they must wait until the estate is fully administered and distributed and then they can request an estate account from the Executor.

Upon reviewing the account, it may be that the beneficiary has detected an error in how the Executor has administered the estate.

If an Executor neglects any of the above obligations and duties, then a beneficiary may have rights against the Executor especially where it has caused a financial loss to that beneficiary.

For example, the beneficiaries may claim that the Executor has:

  • Failed to maintain proper accounting records showing the actual financial position of the estate;
  • Lost profits or poorly managed estate assets; or
  • Acted in a position of conflict, such as, favouring their own interests over those of the beneficiaries.

If a beneficiary has evidence of one of the above occurring after a Grant of Probate has been issued to an Executor, then it is possible to apply to the Court to have the Executor removed and the substitute Executor or an independent administrator appointed to carry on the adminstration of the estate.

If you are an Executor and seek clarification of your duties and obligations, please contact Armstrong Legal on 1300 038 223. Similarly, if you are a beneficiary and believe an Executor has breached their duties/obligations, we can also provide you with appropriate advice.

 

WHERE TO NEXT?

Have you been left out of a Will or treated unfairly? We offer a free assessment of your case and a no win no fee policy. We have a specialist team that deals only in Wills & Estates servicing NSW, VIC, QLD, ACT, SA & WA. The law relating to Wills and Estates can often be complex and confusing so we encourage you to make contact with our team.

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