Contesting a Will
Most often, a challenge to the distribution of a deceased’s asset will be where the was no will, and the intestacy distribution is being distributed. However, where there appears to be a valid will, a will can be challenged on several grounds. These grounds are that the testator:
- was not of sound mind – they lacked testamentary capacity;
- was unduly influenced or pressured by another person/s when making the will – this is called duress;
- failed to meet the formal requirements of a will – including not knowing that the document they were signing was a will;
- failed to make adequate provision for dependents.
Disputing a Will’s meaning
The evidentiary rules of disputing the meaning of a will are contained in the Wills Act. Disputing a will’s meaning can take place where the will contains language that make the will or a part of the will meaningless, or ambiguous on the face of the will or the surrounding circumstances (s46). Where a residue of an estate of a testatrix refers only to the real or personal estate of the testator, the will is construed to include both the real and personal estate of the testator (s56).
Testator’s Family Maintenance Act 1912
A person who feels that they have been inadequately provided for from the estate of a deceased can make an application to contest a will or statutory disposition of an intestate estate under the Testator’s Family Maintenance Act, section 3(1). The provision is restricted to:
- the spouse of the deceased;
- the children of the deceased;
- the parents of the deceased, if the deceased had no spouse or children;
- a person who was married to the deceased and received or was entitled to receive maintenance;
- a person in a significant relationship with the deceased, within the meaning of the Relationships Act2003 (Tas) who was entitled to receive maintenance.
The application will be considered in light of whether the person falls within these categories, and in deciding whether to refuse or grant the application will look at:
- the net value of the deceased state, taking into account testamentary and funeral expenses and other liabilities; and
- the entitlements of the challenger to independent means that were secured in some other way from the deceased person.
The conduct or character of an applicant can disentitle them, and a court can refuse an application on this basis (s8, Testator’s Act). Section 8A is a non-exhaustive list of evidence that can be considered in determining a deceased’s reasons for dispositions. (Non-exhaustive means that the section does not contain all the types of evidence that can be considered, it is a guide).
Page last updated 15/12/2017