Challenging a Will
In Tasmania, whether a will is valid depends on whether or not it complies with certain criteria and requirements set out in the Wills Act 2008. A person who believes a deceased’s will to be invalid may challenge the will in the Supreme Court. This page deals with challenging a will in Tasmania.
Grounds for challenging a will in Tasmania
Under section 8 of the Wills Act 2008, a will must be in writing and must be signed by the testator (the person making the will) in the presence of two witnesses.
There are a number of critical requirements for a valid will including that:
- The person making the will is over 18;
- 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, in some circumstances, accept the will as an ‘informal will’.
- If the testator was married, the will must have been made after their marriage, unless it was specifically made in contemplation of marriage;
- The will reflects the testamentary intentions of the will-maker.
In addition to the above, some of other grounds on which a person can challenge a will include:
- The will-maker was unduly influenced by another party;
- The will-maker lacked testamentary capacity;
- The will was forged;
- The will-maker did not know or approve of the contents of the will.
Who can challenge a will in Tasmania?
In Tasmania, a person can challenge a will if they have standing in the estate of the deceased person. Unless a person has standing in the estate, they are not entitled to challenge the validity of the will.
A person has standing to challenge a will if they are:
- A named beneficiary in the will;
- A named beneficiary in a prior will; or
- 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.
How to challenge a will
If a person wishes to challenge a will, a probate caveat should be filed 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. You can contact the Supreme Court of Tasmania to ascertain this.
After a 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 within 28 days of the notice being given by the court. If this is not done, the caveat will lapse. Subsequently, the person challenging the will must commence court proceedings by filing a Statement of Claim which sets out the particulars of the claim and the facts that they rely upon. The Executor Defendant must file a counterclaim setting out their defence.
Once the defence is filed, 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 affidavits of evidence and for the filing of expert evidence. Subpoenas may also 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.
If the matter proceeds to a trial, the judge will hear evidence and decide the outcome of the matter.
Challenging an executor
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.
If an executor neglects any of the above obligations and duties, then a beneficiary may have a claim against the executor especially where the executor’s failing has caused a financial loss to the beneficiary.
For example, a beneficiary 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 they can apply to the court to have the executor removed and the substitute executor or an independent administrator appointed to carry on the administration of the estate instead.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.