Contesting a Will
In Tasmania, eligible persons can contest a will and make what is called a Family Provision claim if they have been left without adequate provision from a deceased estate. Armstrong Legal has a team that practices exclusively in Wills and Estates Law and is here to guide you through negotiations and court proceedings to help you achieve the best possible outcome. If you are considering contesting a will, or if you have a question about wills and estates law, please contact our friendly team of contested wills lawyers.
Grounds for contesting a will in Tasmania
In Tasmania, you may contest a will if:
- You are an Eligible Applicant; and
- You believe that you have been left without adequate provision for your proper maintenance and support.
The court considers a number of factors when ascertaining whether an estate has made adequate provision for a claimant.
How to contest a will in Tasmania
A family provision claim can be made in Tasmania if:
- The deceased lived in Tasmania at the time of their death; or
- The deceased owned real estate in Tasmania at the date of death.
The steps involved in contesting a will in Tasmania include the following:
- Writing to the solicitor for the executor(s) and notifying them of your intended family provision claim;
- Ascertaining details of the size of the estate and obtaining copies of probate documents, your current financial and health circumstances and details of your relationship with the deceased;
- Entering into out of court settlement negotiations with the executor/s;
- If a settlement cannot be achieved, drafting court documents including an Affidavit in Support to commence your family provision claim in court;
- Attending a mediation;
- If the matter does not settle at mediation, attending the Trial hearing.
Even if your matter does not settle at mediation, the parties can reach a settlement at any time between mediation and up until the completion of Trial. Should you have any questions regarding the process involved in contesting a Will in Tasmania, please contact Armstrong Legal on 1300 038 223.
Who can contest a will in Tasmania?
In order to contest a Will in Tasmania, you must be an eligible applicant. Eligible applicants include:
A spouse is a husband, wife or person who was in a ‘significant relationship’ with the deceased person at the time of their death.A ‘significant relationship’ is a relationship between two adult persons:
- Who have a relationship as a couple; and
- Who are not married to one another or related by family.
The ‘significant relationship’ may be registered. If registered, proof of this is required.
If the ‘significant relationship’ is unregistered, then the following factors will be taken into account when determining if two people are in a ‘significant relationship’:
- The duration of the relationship;
- The nature and extent of common residence;
- Whether or not a sexual relationship exists;
- The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
- The ownership, use and acquisition of property;
- The degree of mutual commitment to a shared life;
- The care and support of children;
- The performance of household duties;
- The reputation and public aspects of the relationship.
A child may be an adopted child, stepchild or surrogate child as well as a biological child.
Only if the deceased died without leaving a spouse or any children.
A former spouse is an eligible person only if they were receiving or entitled to receive maintenance from the deceased person pursuant to a Court Order, agreement or otherwise at the time of the deceased’s death.
A person who was formerly in a ‘significant relationship with the deceased’
A person who was formerly in a significant relationship with he deceased is an eligible person only if the person was receiving or entitled to receive maintenance from the deceased person pursuant to a Court Order, agreement or otherwise.
If you believe you are an ‘eligible person’ and have a claim to make on a will in Tasmania, please contact Armstrong Legal to obtain a free case assessment on 1300 038 223.
Tasmania has one of the shortest time limits in Australia in which to contest a Will. Your claim must be filed before and no later than three months after the date of Grant of Probate or Letters of Administration.
You may be able to file after the three-month time limit, but only if the court grants you permission to do so. The court will consider the persons affected (such as the persons who have already received a distribution, those named in the Will or who received an entitlement from the estate if there is no will) or persons who are likely to be affected by your out of time claim.
An out of time application can only be made if the whole estate has not yet been fully distributed. Any part of the estate distributed before an out of time application is made, cannot be disturbed.
How do I get a copy of a will?
If you have a close family member who has recently passed away and you are uncertain as to what was in their will, we encourage you to contact the executor (person named in the will who will be in charge of administering the estate) or the executor’s solicitor, to request a copy of the will.
In Tasmania, there are certain persons who are entitled to inspect a copy of the deceased’s will. If you are one of the following persons, you are entitled to inspect and take copies (at your own expense) of a deceased person’s will (including a revoked or purported will):
- A person referred to in the will (whether or not named as a beneficiary);
- A spouse, parent or guardian and any children;
- A person who is entitled to a share of the estate if the deceased died without a will;
- Any creditor or other person having a claim at law or in equity against the estate;
- A named beneficiary in a prior will of the deceased;
- A parent or guardian of a minor referred to in the Will or who would be entitled to a share of the estate if the deceased person had died without a will.
If you are having difficulty obtaining a copy of a deceased close family member’s will, please contact our office on 1300 038 223 for assistance.
Who pays the fees?
In Tasmania, costs are determined by the Judge and are entirely discretionary. However, this does not affect the entitlement of an executor or administrator, who has reasonably instituted or resisted any proceeding, to costs out of the estate.
For a person contesting a will, the Judge will determine by whom, from where and to what extent legal costs are to be paid. Generally, costs follow the event. This means, if you are successful, then the court is likely to order that your legal costs be paid out of the estate. However, if you are unsuccessful, then the court will most likely order that you bear your own costs. If the court considers that you should not have brought the claim because it had no proper basis, then you may be ordered to pay the estate’s legal costs in addition to your own legal costs.
Please contact Armstrong Legal on 1300 038 223 to obtain further information regarding legal costs and find out if you are eligible for a No Win No Fee cost agreement.
If a person dies without a Will, they have died intestate. The person who is their next of kin is generally the person who will need to apply for Letters of Administration and that person will then become the Administrator.
Once a Grant of Letters of Administration is issued by the Court, an Administrator must collect the deceased’s assets and distribute them to the beneficiaries.
In Tasmania, the following persons are entitled to a portion of an intestate estate.
You are ‘spouse’ if you were:
- Married to the deceased, immediately before death of deceased;
- In a ‘registered personal relationship’ with deceased immediately before death. This means, either in a:
- Registered ‘significant relationship’ (see Who can Contest a Will in Tas?) or;
- Registered ‘caring relationship’ (you need proof of registration to prove relationship):
- A ‘caring relationship’ is a relationship other than a marriage or significant relationship between two adult persons whether or not related by family, one or each of whom provides the other with domestic support and personal care.
- A ‘caring relationship’ does not exist if domestic support and personal care is provided–
- for fee (does not include Carer’s allowance) or payment in the nature of wages; or
- under an employment relationship between the persons; or
- on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).
- Was a party to a ‘significant relationship’ (see Who can Contest a Will in Tas?) with the Deceased, immediately before their death AND:
- Was in existence for a period of at least 2 years before the Deceased’s death; or
- Had resulted in the birth of a child.
What does a spouse receive?
- If there is a surviving spouse and no children of the deceased or spouse, then the spouse will receive the entire estate.
- If there is a surviving spouse and children of the deceased and spouse, then the spouse will receive the entire estate.
- If there is a surviving spouse and no children of the deceased, but children of the spouse, then the spouse will receive the entire estate.
- If there is a surviving spouse and children of the deceased who are not children of the spouse, then the spouse receives the following:
- The Deceased’s personal effects
- Statutory Legacy = $350,000 (adjusted according to CPI)
- One half of the remainder of the estate
The children of the deceased receive the other one half of the remainder of the estate.
- If there is only one surviving spouse, then the spouse can elect to acquire property from the estate. In some cases, the Court’s authorisation may be required. An administrator is required to give notice to a spouse within one month of the Grant of Letters of Administration. The spouse then has 3 months from the date the notice is given in which to exercise the election. If the spouse is also the Administrator, then they have 3 months after the administration commences. The Court may grant permission to extend the time in specific circumstances.
- If there is more than one surviving spouse, but no children, the spouses are entitled to the whole estate in shares determined by the law.
- If there is more than one surviving spouse and children who are children of one or more of the surviving spouses, the surviving spouses are entitled to the whole of the estate in shares determined by the law.
- If the deceased leaves more than one surviving spouse and children who are not children of the spouse, the spouses are entitled to the following:
- The Deceased’s personal effects;
- Statutory Legacy = $350,000 (adjusted according to CPI)
- One half of the remainder of the estate.
A ‘child’ includes an ‘adopted child.’
If there is no surviving spouse and only surviving children, then the estate goes to the children equally (or grandchildren if the child or children are deceased).
If there is no surviving spouse or children, then the entire estate goes to the living parent or parents of the deceased.
Brothers and sisters
If there is no surviving spouse, children, parents, then the entire estate goes to the brothers and sisters of the deceased.
If there is no surviving spouse, children, parents, brothers or sisters, then the entire estate goes to the grandparents of the deceased.
Uncles and aunts
If there is no surviving spouse, children, parents, brothers or sisters or grandparents, then the entire estate goes to the uncles and aunts of the deceased.
The state government
If there is no living relative who is entitled to the intestate estate, then the estate goes to the State Government. However, the Government may pay some money to a ‘dependent’ if it is established that the deceased had a dependent.
This is generally when the intestate has left behind a spouse or partner as well as children or grandchildren. The way it’s broken up depends on the dollar value of the estate.
The above persons must have survived the deceased for 30 days.
If you require legal assistance, advice or representation in a contested wills matter or in any other legal matter, please contact Armstrong Legal.