Challenging a Will in Tasmania - Undue Influence and Lack of Capacity Claims

By James Stevens, Director and Solicitor, Go To Court Lawyers. Last reviewed 10 April 2026.

Challenging a Will in Tasmania - Undue Influence and Lack of Capacity Claims

If you believe someone manipulated or pressured your loved one into changing their will, or they lacked mental capacity when signing it, you can challenge the will's validity in Tasmania's Supreme Court. These claims are completely separate from family provision applications and can result in the entire will being declared invalid. You have limited time to act - most challenges must begin within 6 months of probate being granted, so contact a specialist wills lawyer immediately on 1800 577 015.

Do You Need a Lawyer?

Yes, you absolutely need specialist legal representation for undue influence and lack of capacity claims in Tasmania. These cases require extensive medical evidence, witness testimony, and complex legal arguments in the Supreme Court of Tasmania. Without proper legal representation, you risk your case being dismissed and paying the other side's legal costs, which can exceed $50,000.

A specialist wills lawyer can gather crucial evidence including medical records, witness statements, and expert psychiatric opinions that judges rely on. They understand the specific legal tests Tasmania's Supreme Court applies and can present your case effectively. The estate's lawyers will be highly experienced - you need equal representation to protect your interests.

Going alone means facing barristers and solicitors who handle these disputes daily, while navigating complex Supreme Court procedures you've never encountered. The financial and emotional stakes are too high for self-representation.

What Happens Next - The Process

Here's the step-by-step process for challenging a will in Tasmania's Supreme Court:

1. Urgent case assessment (within 48 hours): Your lawyer reviews the will, medical records, and circumstances surrounding its creation to determine if you have viable grounds.
2. Gather evidence (2-8 weeks): Obtain medical records, interview witnesses, engage psychiatric experts, and collect documentation showing the deceased's mental state or evidence of pressure.
3. File originating summons (Supreme Court of Tasmania): Lodge formal court documents challenging the will's validity, typically costing $500-800 in court fees.
4. Serve all parties (1-2 weeks): Notify all beneficiaries, executors, and interested parties of your challenge - they can defend the will.
5. Discovery phase (3-6 months): Both sides exchange evidence, medical reports, and witness statements under court supervision.
6. Mediation attempt (1-2 days): Court-ordered mediation to explore settlement before trial - many cases resolve here.
7. Trial preparation (2-4 months): Prepare witness testimony, expert reports, and legal arguments for Supreme Court hearing.
8. Supreme Court trial (2-5 days): Judge hears evidence and determines if the will is valid or should be declared invalid.
9. Judgment and costs orders: If successful, the invalid will is set aside and the previous valid will (or intestacy rules) applies.

Time limits are strict - most challenges must commence within 6 months of probate grant. Don't delay seeking legal advice.

The Law in Tasmania

Will challenges in Tasmania are governed by the Wills Act 2008 (Tas) and Supreme Court procedures under the Supreme Court Civil Procedure Act 1932 (Tas). The court applies strict legal tests to determine validity.

Undue influence requires proving someone coerced or pressured the deceased to make a will against their true intentions. The legal test established in Allcard v Skinner requires evidence that:

• The deceased was vulnerable to influence due to age, illness, or dependence
• Someone in a position of trust exploited this vulnerability
• The will's provisions are so unusual they can't be explained by the deceased's free choice
• The person who benefited was involved in or aware of the pressure

Lack of testamentary capacity follows the test in Banks v Goodfellow, requiring proof the deceased didn't:

• Understand they were making a will
• Comprehend the extent of their property
• Understand who might expect to inherit (family members)
• Make rational decisions due to mental illness affecting their judgment

Unlike family provision claims under the Family Provision Act 1969 (Tas), these challenges don't seek a larger inheritance share - they argue the will is completely invalid. If successful, the court declares the will void and applies the previous valid will or intestacy distribution under the Administration and Probate Act 1935 (Tas).

Mistakes to Avoid

1. Waiting too long to challenge: Many people assume they have years to contest a will, but most challenges must begin within 6 months of probate being granted. We've seen valid claims fail simply because people waited too long after discovering the problematic will.

2. Confusing undue influence with family disappointment: Being upset about inheritance decisions isn't undue influence. You need evidence of actual coercion, manipulation, or pressure. Simply proving someone had opportunity to influence isn't enough - you must show they actually did so inappropriately.

3. Assuming medical conditions automatically mean lack of capacity: Having dementia, depression, or other mental health issues doesn't automatically invalidate a will. People can have "lucid intervals" where they understand their decisions. You need medical evidence specifically about their mental state when signing the will.

4. Destroying or hiding evidence: Some family members destroy medication records, doctor's notes, or other evidence thinking it helps their case. This is illegal and creates serious problems. Courts draw negative inferences when evidence goes missing after someone dies.

5. Proceeding without proper medical evidence: These cases live or die on expert psychiatric or psychological evidence. Getting a GP to say someone "seemed confused" isn't sufficient. You need specialists who can provide detailed opinions about testamentary capacity based on medical records and witness accounts.

Likely Outcomes and Costs

Successful will challenges result in the court declaring the disputed will invalid. This means the estate distributes according to the previous valid will, or if none exists, under Tasmania's intestacy laws. You don't get a larger share than other family members - you get what the valid will (or law) says.

With proper legal representation, undue influence claims succeed in approximately 30-40% of cases that reach trial, while lack of capacity claims succeed in about 45-55%. However, many cases settle during mediation when the evidence strongly supports your position.

Legal costs typically range from:

• $15,000-$35,000 for cases that settle before trial
• $40,000-$80,000 for cases requiring Supreme Court trial
• $80,000+ for complex cases with multiple expert witnesses

These costs include court fees, medical expert reports (usually $3,000-$8,000 each), barrister fees, and solicitor time. If you lose, you may pay the other side's costs, potentially adding $30,000-$60,000.

Going without a lawyer saves initial costs but dramatically reduces your success prospects. Courts dismiss most self-represented will challenges for failing to present proper evidence or follow court procedures.

Timeline expectations: Simple cases resolve within 6-12 months, while contested matters requiring trial take 12-24 months from filing to judgment.

How Go To Court Lawyers Can Help

Go To Court Lawyers has Australia's largest network of specialist wills and estates lawyers, with 800+ lawyers across every state and territory, including experienced practitioners in Tasmania who regularly appear in the Supreme Court.

Our Tasmania wills specialists understand the nuances of local court procedures and have established relationships with the medical experts these cases require. We've successfully challenged wills based on undue influence and lack of capacity, securing millions in inheritance for clients who thought they had no options.

What sets us apart:

• Fixed $295 initial consultation to assess your case and explain your options
• Proven track record in Tasmania Supreme Court will disputes
• Access to leading psychiatric and psychological experts
• Transparent fee estimates before you commit
• 4.5-star rating from 780+ client reviews
• 24/7 legal hotline for urgent enquiries: 1800 577 015

We can also combine will validity challenges with family provision claims where appropriate, maximizing your prospects of a fair inheritance outcome.

Don't let time limits destroy your case. Call 1800 577 015 now for urgent legal advice, book online at gotocourt.com.au/book, or request immediate help through our website. Your inheritance rights are too important to risk with delays or inexperienced representation.