Who Can Contest A Will In Tasmania?

A person can dispute the terms of a deceased’s will in Tasmania if they have been left with inadequate provision and they are an eligible applicant. Only a small list of people are eligible claimants. Under the Testator’s Family Maintenance Act 1912, eligibility to contest a will is restricted to immediate family members. This article explains Testators’ Family Maintenance Claims and the eligibility criteria to contest a will in Tasmania.

Contesting A Will In Tasmania

The Supreme Court of Tasmania has jurisdiction over a contested estate if the deceased lived in Tasmania before their death or owned real estate in the state when they died. An eligible person applies to the Supreme Court in the hope that the court will order a redistribution of the deceased estate in their favour.

Under statutory provisions, the deceased’s spouse and child are automatically classified as eligible to make a Testator’s Family Maintenance Claim, while the deceased’s parents have conditional eligibility. This is a more restricted eligibility list than in other Australian jurisdictions, where other relatives and dependants can also make a claim.

Spouses

Under succession law, the deceased’s spouse has priority to inherit and contest the will of their deceased spouse. The term spouse here refers to not only the deceased’s current wife or husband but also anyone in a significant relationship with the deceased as defined by the Relationships Act 2003. A spouse also includes de facto partner as defined by the Family Law Act 1975 (Cth). A de facto relationship is between two people who are not related or married and are living together on a genuine domestic basis. A claimant can prove eligibility as a de facto partner if they lived with the deceased continuously for two years prior to their death or had a child with the deceased.

The eligibility of a spouse is not limited to current married or de facto spouses. A former wife, husband or partner who was receiving (or was entitled to receive) maintenance from the deceased can also make a claim against the deceased estate. This maintenance may be court-ordered or pursuant to a private agreement between the former couple.

Child

A minor or adult child of the deceased is automatically eligible to make a Testator’s Family Maintenance Claim in Tasmania. This category of eligibility includes a formally adopted child or stepchild of the deceased.

Parent

A parent of the deceased can only contest a will in Tasmania if the deceased died without a child or spouse. In that case, the parent is considered to be the nearest family to the deceased and becomes eligible to contest the will of their child.

Who Cannot Contest A Will In Tasmania?

The list of eligible claimants in Tasmania is limited and excludes dependents and other family members such as grandchildren, siblings, cousins, nieces and nephews. In other jurisdictions, these relatives are often eligible to make a claim if they were financially dependent upon the deceased.  Under the Tasmanian system, a grandchild is not able to contest the terms of their grandparent’s will even if the deceased was very close to their grandchild and partially responsible for their welfare.

Deadlines To Contest A Will In Tasmania

Those people who can contest a will in Tasmania need to do so within set timeframes. In that state, a claimant only has three months from the date of probate grant to make a TFM claim. This is the shortest timeframe in Australia, making it particularly important that family members act quickly if they intend to contest a will.

A claimant can only make a claim after this deadline with the permission of the Supreme Court of Tasmania. Exceptions are rare as the court encourages a swift and uncomplicated resolution to deceased estate administration. However, if a spouse or child was not aware of the death of the testator, or was provided with incorrect legal advice leading to the delay, this may be sufficient justification to lodge a claim outside the timeframe.

Just because someone can contest a will in Tasmania does not mean that they have a high likelihood of success if they make a claim. The court will only consider a claim from someone who was morally and legally entitled to more than they received under the will. The court will deliberate with a view to the nature and length of the relationship between the claimant and the deceased, and whether the deceased had a responsibility to provide for the claimant given all the circumstances. The court will also consider the rights of any other beneficiaries of the estate.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

Author

Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Armstrong Legal in 2020.
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