Grounds For Contesting A Will Tasmania

In Tasmania, certain family members have redress if a person fails to leave adequate provision for them in their will. These eligible people can lodge a Testator’s Family Maintenance (TFM) Claim to ask for a larger portion from the deceased estate. Although being eligible is the first hurdle, an eligible claimant must also have sufficient grounds to successfully make a TFM Claim. The Supreme Court of Tasmania follows the regulations in the Testators Family Maintenance Act 1912 when assessing whether a claimant has sufficient grounds to contest a will in Tasmania. This article explains eligibility and acceptable grounds for contesting a will in Tasmania.

Contesting A Will In Tasmania: Eligibility

A person can only file a TFM with the Supreme Court of Tasmania if the deceased owned real property in Tasmania or lived permanently in the state. The claimant must also be in a category of eligible individuals and have sufficient grounds for contesting a will. The list of eligible claimants in Tasmania is limited to the closest family members, specifically the deceased’s spouse (including a current de facto partner) or child. There is also conditional eligibility for the deceased’s former partner if he or she was entitled to financial maintenance from the deceased. The deceased’s parent can also lodge a TFM Claim if the deceased had no spouse or children.

Grounds For Contesting A Will In Tasmania

For someone to be successful when contesting a will in Tasmania, they must demonstrate that they have grounds for the court to overturn the testator’s wishes. The court can evaluate the claim against any criteria it deems relevant. The issues that are of most interest to the court are typically the relationship between the claimant and the deceased, the testator’s state of mind when making their will, and the financial circumstances of all parties.

Relationship Between Claimant And The Deceased

The court particularly needs to know what sort of relationship existed between the claimant and the deceased. This includes whether or not the claimant and testator were in close contact at the time of the testator’s death, and whether they offered each other mutual support. Certainly, it is a significant factor if there was no contact between the parties for many years before the testator died. Still, estrangement alone is not sufficient grounds to prevent someone from successfully contesting a will in Tasmania. The court will consider the relationship in terms of the testator’s moral responsibility to provide for the claimant in their will.

Testator’s state Of mind

With a TFM Claim, the court examines the testamentary documents to find evidence of the testator’s state of mind when they made their will. Occasionally, a testator will include a comment in their will explaining the size or nature of a bequest. For instance, a testator might justify leaving one of their children a smaller inheritance because they already gave that child a sizable gift. In the same way, a testator can also use the opportunity to point out that one of their beneficiaries received a larger share for a sound reason (such as because the beneficiary was dependent on the testator for maintenance).

Financial Circumstances

A major factor in any TFM Claim in Tasmania is the size of the estate and the financial resources and needs of the claimant and existing beneficiaries. The court will assess whether a redistribution in the claimant’s favour will unreasonably impact provisions made to other beneficiaries. With smaller estates, the court is unlikely to approve a claim from anyone but a spouse or minor child, as any additional claim would unreasonably diminish the estate.

Any history of financial interdependence between the claimant and the testator is also of interest in a TFM claim. For instance, if the claimant contributed previously to the deceased estate (e.g. by working in a family business or by repaying debt on behalf of the deceased), they have further grounds for contesting the will. It does not diminish a claimant’s entitlement to further provision from the estate if the testator provided financial support to the claimant in the past. In fact, a history of financial support can be used to establish that the claimant was financially dependent on the deceased. As such, in a TFM Claim, the claimant should note any financial support previously received from the deceased. The court will consider these financial contributions when determining whether a testator had a moral responsibility to provide for a claimant’s financial welfare.

The claimant’s financial need is grounds for contesting a will in Tasmania. The court will examine the claimant’s circumstances, particularly any factors that impact their capacity to financially provide for themselves. As such, the claimant’s age and financial liabilities are pertinent, as is any physical, mental or intellectual impediment to earning income.

The factors outlined above are just a few grounds for contesting a will in Tasmania. The team at Go To Court can provide specific advice on whether you have grounds for a claim and help you file a TFM claim against a deceased estate. The team can also help with any other wills and estates matters, from challenging a will to executor duties.  Please contact our solicitors today for experienced and friendly assistance.

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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