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Estate Disputes

Wills – can they be disputed?

On 12 September 1912, Tasmania’s Mercury Newspaper reported that a testator could no longer leave his wife and children “penniless by divesting by his will all his property to others”. This was the result of the Testator’s Family Maintenance Act 1912 (The Act) having recently passed the state’s parliament that year.


The Act established an exception to the longstanding legal principle that people were free to bequeath their estates as they see fit.


As a result, since 1912 in Tasmania, children, spouses, and in some cases, parents, have been able to bring an application challenging the decision of a will-maker on the basis that they have been left without adequate provision from the estate.


In the recent decision of Baily v DE Vries [2020] TASSC 42, the Supreme Court of Tasmania summarised the relevant principles. According to the Court, to a large degree, the success of an application turns on the Applicant’s individual circumstances. Those circumstances are then weighed against the merits of the other competing interests in the estate (including those named in the will and any other persons making a claim against the estate). The size and nature of the estate is also an important consideration.


In Tasmania, it is important to file any application challenging a will under the Testator’s Family Maintenance Act 1912 within 3 months of the date probate is granted. That is, the date that the Supreme Court certifies the will is legally valid and authorises the executors to deal with the deceased’s property. Failure to issue proceedings within this timeframe may result in the need for an additional application to extend time. It can also put the estate assets at risk of distribution and may even mean assets become depleted.


Often, the beneficiaries under a contested will and the Applicant(s) will come to an agreement with respect to the distribution of the estate assets, notwithstanding the terms of the will. This can be in best interests of all parties, particularly given the costs which may be incurred in the event of protracted litigation. Agreements of this kind are typically recorded in what is known as a Deed of Family Arrangement.


Testamentary capacity

For a will maker to be able to validly exercise the freedom to give their estate to whomever they choose, they must possess ‘testamentary capacity’ at the time they make their will.


Testamentary capacity is another basis upon which wills are commonly challenged.


As the Tasmanian Supreme Court has made clear, if it is found that the will maker lacked testamentary capacity, the will is void. The onus is on those seeking to uphold the will – typically, the beneficiaries – to prove that the will-maker possessed the relevant degree of testamentary capacity.


As Justice Wood observed in Howroyd v Howroyd [2011] TASSC 73, this requires the Court to be “satisfied  that  the  testator  was  of  sound  mind, memory  and  understanding  when  he  executed  the  will.” Her Honour cited the following statement from Banks v Goodfellow as the “classic test”:

“It is  essential  ….  that  a  testator  shall understand  the  nature  of  the  act  and  its  effects;  shall  understand  the extent  of  the  property  of  which  he  is  disposing;  shall  be  able  to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

How we can help you

Unfortunately, disputes over estates are increasingly common and increasingly complex. The best way to avoid a dispute arising with respect to your own estate is to have your will drawn up by a lawyer who specialises in this area and to periodically review your will and your circumstances – especially if there is a significant change in your situation.


If you require advice in relation to your own estate, or a potential challenge to another estate, you can contact us on 03 6331 5922

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