Who can challenge my Will?

The validity of your Will can be challenged on several grounds. These can include:

  • failure to meet the formal requirements of a Will – such as not being signed by the testator and two witnesses;
  • the Will maker (testator) was not of sound mind;
  • the testator was unduly influenced or pressured by another person/s when making the Will – this is called duress.

In Tasmania, if a person dies and their dependants feel that they are left ‘without adequate provision for proper maintenance and support’ they could make an application for further advancement under the Testator’s Family Maintenance Act 1912. However, only the following people can make a claim:

  • the surviving spouse or partner of the deceased;
  • the children of the deceased, including adopted and stepchildren;
  • the parents of the deceased if the deceased had no spouse or children; and
  • a divorced spouse or ex-partner who is receiving or is entitled to receive maintenance from the deceased at the date of death.

What matters may the Court take into account?

  • The total value of the deceased’s estate.
  • The circumstances and needs of the claimant.
  • Whether by current community standards the deceased had an obligation to provide for the claimant.
  • The means and needs of competing beneficiaries and claimants.
  • The character and conduct of the person making the claim.
  • The nature and quality of the relationship between the claimant and the deceased.
  • The reasons of the deceased, as far as they are ascertainable, for leaving his or her property in a particular way.

A claim must be started within three months after the date of Probate or Letters of Administration being granted. However, this period may be extended by the Court.

Being in the class of people who can challenge does not mean that they will be successful.

If you are concerned about somebody challenging your Will, please talk to our staff about what you can do to minimise a successful challenge.

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