What’s the process if you would like to contest a Will?

We get many queries from people about how they might contest a Will. Usually, this is a Will of a family member, but it might not be for the reasons you expect.

Sometimes a Will may not capture the wishes of the deceased person. With the rise of do-it-yourself (DIY) Will kits, we have seen a rise in beneficiaries or executors realising that a loved one’s Will may not work the way they intended. In Tasmania, there are limited ways you can contest a Will. Estate Law is a complicated area and if you think you may have grounds to contest a Will after reading this article, contact us to book an initial consultation with an estate lawyer about your specific situation.

What does it mean to ‘contest’ a will?

‘Contesting’ a Will basically means to challenge it in some way. This means different things to different people. Some beneficiaries just want information from the executor of the estate to confirm that the Will has been properly executed and everything has been done according to the wishes of the deceased.

Other people want to challenge a Will because they have been left out of it and feel that they should have been given more. In this case, they need to be someone who has the right to challenge the Will under the Testator’s Family Maintenance Act 1912 (Tas) (Family Maintenance Act).

Is it possible to contest a Will? 

Whether you have grounds to contest a Will may depend on your relationship with the deceased person and/or whether you are a beneficiary under the Will.

The Wills Act 2008 (Tas) (Wills Act) sets out the requirements for creating a valid Will in Tasmania. If the Will doesn’t comply with those requirements, it may be invalid.

Importantly, section 12 of the Wills Act notes that if a person who is a beneficiary under the Will is also a witness then any gift to that witness may be void. Due to this provision, it is important that witnesses to Wills are independent people who don’t expect to benefit under the Will. There are exceptions to this rule and if in doubt you should contact us to speak to an Estate Lawyer.

If you have been left out of a Will, you will only have grounds to challenge the Will under the Family Maintenance Act if you are a “person entitled to claim” under section 3A of that Act. That sections limits claims to people with the following relationships with the deceased person:

• Their spouse or de facto partner;
• Their children;
• Their parents (but only if they leave no spouse or children); and
• An ex-spouse or ex de-facto partner who was receiving maintenance from the person at the time of their death.

What do they need to consider?

Contesting a Will is a legal process and you need to be sure that you have standing to challenge the Will before filing it in Court. If you apply to challenge a Will but it’s found that you had no legal basis for your application,  a Court may order you to pay the costs of the other parties in responding to your application.

Contact us to book an initial consultation with a lawyer about your circumstances and for information about how we can help you.

What is the process?

The first step should always be to identify what your claim is and notify the executor of the estate that you believe you have a claim. An executor or administrator of an estate should not distribute assets under a Will without holding enough to cover any claims that they have been notified of.

The next step is to resolve the dispute, by attempting to negotiate. This may avoid any need to go to court.

If negotiation is unsuccessful, and you believe you have a legal basis for the claim, then the final step is to proceed to the Supreme Court of Tasmania to make the claim. This requires the filing of evidence and, if the matter does not settle, then the Court will hold a hearing to evaluate the evidence and decide whether your claim is successful.

Do they need to meet a threshold or requirements to contest a Will

If you are contesting the Will because you have been left out of it, or believe you should have received more under the Will, then a Court will only change the Will if they are satisfied that:

• You are an eligible person under s3A of the Family Maintenance Act as noted above; and
• You have been left without adequate provision for your proper maintenance.

If the deceased person left a statement of reasons with their Will explaining why they did not leave a person any or more of a provision in their Will then the Court will consider these reasons in making a decision.

Will I need a lawyer?

If you want to challenge a Will by taking the matter to court then it is a good idea to start with obtaining legal advice. As noted above, Tasmanian law restricts some claims against an estate and it’s important to be clear with the Court about what you are asking for and the legal basis for the claim.

If you bring a claim and it is not made out, you risk paying the other parties’ costs (or costs of the estate in defending the action) and so it’s important to make sure you have a case before proceeding. Speaking to a lawyer early on may ultimately save you money.

Will I need to go to court?

We always suggest mediation or negotiation as a first step, particularly with estate matters which often involve complex emotional relationships. A legally sound argument in a letter offering a compromise can go a long way to settling a matter before significant fees are accrued. Ultimately, if negotiation doesn’t work and you still want to challenge the Will then you will need to go to Court.

If you just need information about your rights and where to start, speak to us for more information about how we might be able to assist you.