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ESTATE & TRUST DISPUTES


About Estate and Trust Disputes

Disputes about an estate or a trust can arise in many way.   Worrall Lawyers is a leading provider in Tasmania of Estate & Trust disputes services to private clients, with a team of specialist lawyers.

Informal Wills

To be formally valid, a Will made in Tasmania must comply with the formal requirements set out in the Wills Act 2008 (Tasmania).   These include requirements about the document itself, how the Willmaker executes the document, how the document is amended, and how the Willmaker’s execution of the Will is witnessed.

If those requirements are not met, the Wills Act provides the Supreme Court of Tasmania with the power to effectively waive the formal requirements and admit what is otherwise an “informal Will” to probate, in certain limited circumstances.

Services offered by Worrall Lawyers

  • advice to Executors, beneficiaries and other interested persons about whether a Will is formally valid, and whether an informal Will application may be available and is likely to succeed
  • representation in informal Will proceedings in the Supreme Court of Tasmania, including for Executors, beneficiaries and other interested persons

Family Provision (TFM) Claims

A “family provision” or Testator’s Family Maintenance (or “TFM”) claim is a claim made by an eligible person against an estate, seeking either that provision be made for them from that estate (for example: they receive a benefit or share where no provision has been made), or seeking that they receive additional provision (for example: that they receive more than what the relevant Will or intestacy provides for them).

Services offered by Worrall Lawyers

  • advice to Executors, potential applicants for provision or additional provision, and interested beneficiaries, about family provision (TFM) claims
  • advice and representation in contested probate actions in the Supreme Court of Tasmania involving family provision (TFM) claims
  • advice and representation for Litigation Guardians for minor or incapacitated applicants or beneficiaries
  • advice to other lawyers by way of formal legal opinion advising about the merits of family provision (TFM) claims
  • advocacy services for administrative and final Court hearings involving family provision (TFM) claims
  • agency services for law firms in family provision (TFM) matters, including firms outside the south of Tasmania, and interstate or overseas law firms
  • family provision claims in other Australian jurisdictions

Disputes About Testamentary Capacity

To make a valid Will, a Willmaker must have what is known as “testamentary capacity”.   This is not defined by legislation in Tasmania, and the common law provides the legal test that must be met in order for a person to have testamentary capacity.

In general terms, testamentary capacity requires that the Willmaker knows the general nature and extent of their property, has the capacity to know and consider the claims on their estate, knows what a Will is and what it does, and can act free from any relevant delusions.

Issues about testamentary capacity can arise at the time a Will is made, changed or revoked, before the death of the Willmaker where there is concern about Wills or other previous testamentary acts, and after the death of the Willmaker when the validity of their Will or Codicil needs to be determined.

Services offered by Worrall Lawyers

  • when facts suggest that testamentary capacity may have been an issue when a Will was made, advice to Executors, interested beneficiaries and other persons
  • where testamentary capacity is an issue, advice and representation in contested probate actions in the Supreme Court of Tasmania
  • legal opinions advising about the merits of disputes about testamentary capacity to other lawyers
  • Estate Planning services for Willmakers with reduced capacity

Disputes About Knowledge and Approval

A Willmaker must, in addition to having testamentary capacity, know and approve of the contents of their Will, in order for the Will to be admitted to probate.

The person seeking to propound (put forward) the Will bears the onus of proving knowledge and approval.

There is a presumption that usually assists: if it is proved that the Will is properly executed in accordance with the formal requirements, a presumption arises that he or she knew of and approved the contents of that Will.

If there are circumstances that “excite suspicion” that the contents of the Will may not have been fully known of, and approved by the Willmaker, this presumption will not apply. The person wanting the Court to grant Probate of the Will must remove the suspicion by providing clear and satisfactory proof that the Willmaker knew and approved the contents of the Will.  Suspicious circumstances are noted in a case called Nock v Austin. One particular circumstance that will often “excite suspicion” is where a person prepares a will under which they are to receive a benefit.

Services offered by Worrall Lawyers

  • advice to Executors, interested beneficiaries and other persons when facts suggest that lack of knowledge and approval may have been an issue when a Will was made
  • advice and representation in contested probate actions in the Supreme Court of Tasmania where lack of knowledge and approval is an issue
  • advice to other lawyers by way of legal opinions advising about the merits of disputes about knowledge and approval

Undue Influence and Wills

Undue influence, in the context of making a will, has a specific meaning. It does not equate simply to a concern that someone has influenced a Willmaker to make, or change, their Will in a particular way.

The established legal principles, at common law, are as follows

  • if a Will is on its face regularly executed and apparently made by a person of competent understanding and apparently a free agent, the burden of establishing that it was executed under undue influence lies on the person who is asserting undue influence
  • the influence that must be shown to void a Will must amount to force or coercion destroying free agency
  • coercion may be of different kinds
  • it is not sufficient that a person has the potential power unduly to overbear the Will of the Willmaker

Services offered by Worrall Lawyers

  • advice to Executors, interested beneficiaries and other persons when facts suggest that undue influence may have been present when a Will was made
  • advice and representation in contested probate actions in the Supreme Court of Tasmania where undue influence is an issue in dispute
  • advice to other lawyers by way of legal opinions advising about the merits of disputes about undue influence

Probate Caveats

When a dispute arises after the death of a person about the validity of their Will, or about who is entitled to administer the estate, someone with an interest in the estate may file a “Probate Caveat” with the Supreme Court of Tasmania.

You can find detailed information about the benefits of instructing Worrall Lawyers about Probate Caveats here. 

Construction and Rectification of Wills

Some Wills have problems.   Sometimes their meaning needs to be worked out (“construction”), or due to a problem with the provisions in the Will, the Will needs to be fixed (“rectification”).

This is a specialist area of the law, and expert advice should be obtained from us.

Services offered by Worrall Lawyers

  • advice to Executors, Administrators and beneficiaries about the correct or likely construction of a Will
  • assistance to negotiate a resolution to construction issues with other people involved in the estate
  • applications to the Supreme Court of Tasmania for the construction of a Will
  • applications to the Supreme Court of Tasmania for the rectification of a Will
  • advice and representation about Statutory Wills

Disputes About Powers of Attorney

Power of Attorney disputes can arise in a number of ways.

An Attorney owes strict statutory and common law duties to the person who appointed them (the donor of the Power of Attorney).   When the Attorney may not have complied with their duties, the donor may have remedies against the Attorney.   This may be through either the Supreme Court of Tasmania or the Guardianship Board of Tasmania.

Where the donor has lost mental capacity, disputes may arise between the Attorney and other people.   Disputes can include: disputes about who should be the Attorney; disputes about the formal validity of Power of Attorney documents; disputes about the donor’s capacity when they appointed the Attorney; disputes about other interested people obtaining documents and information; and disputes about how the Attorney is exercising their powers.

Sometimes disputes arise between Attorneys for the same donor, about particular decisions, or about how the affairs of the donor should be managed.

Services offered by Worrall Lawyers

  • advice about the need for, effect of and considerations when making an Enduring Power of Attorney
  • drafting Enduring Powers of Attorney in accordance with the donor’s personal circumstances and requirements
  • advice and representation in applications to the Guardianship & Administration Board
  • advice to Attorneys about matters including their role, particular decisions, and the Enduring Power of Attorney document
  • Commercial and Property Law services to Attorneys involved in transactions on behalf of their donor, including conveyancing
  • advice and assistance to Attorneys about accounting, disputes with donors, disputes with other family members
  • claims against Attorneys for relief including requiring an accounting, equitable damages, and applications to remove from office
  • advice and assistance to Attorneys where a Statutory Will for the donor is being considered or applied for

Guardianship Board Proceedings

The Guardianship Board of Tasmania can hear and determine disputes including: most disputes involving Powers of Attorney; applications and disputes about the guardianship arrangements for a person; and applications and disputes involving the financial administration arrangements for a person.

An important role of the Board is to review, make orders and give directions about the acts of Attorneys, and the acts of Guardians.

Services offered by Worrall Lawyers

  • advice and representation about Guardianship Board proceedings
  • assistance to parties in relation to obtaining and preparing evidence for hearings, and preparing submissions and arguments for hearings

Statutory Wills

A Statutory Will is one that is made by the Supreme Court on behalf of a person who lacks capacity to make their own will.  In Tasmania, a Statutory Will may also be made in some circumstances by the Guardianship and Administration Board.

You can find more information about Statutory Wills, including the book co-authored on the subject by Director Sam McCullough, here.

This is How Worrall Lawyers can Help You with Your Estate and Trust Disputes

Services offered by Worrall Lawyers in this area include those outlined above.

Worrall Lawyers has highly trained lawyers with expertise and experience in this area of the law.   You can review their profiles here to choose who would be most suitable for you and your family.

Make an enquiry or arrange an appointment with us here, to benefit as our client from our expert advice and solutions available to you in this area.

What Worrall Lawyers’ publications are Available About Estate and Trust Disputes?

A PDF copy of the material in this area of the law is available by following the “Download PDF version of this page” link above.   Readers are encouraged to save this material for their future reference, or to share it by email or other means with friends or family who may have an interest or need for our expert advice and solutions in relation to this legal issue.

If you are interested in learning more, publications written or contributed to by members of Worrall Lawyers about this area of the law can be accessed here.   You can access (or, for some materials, purchase) case reviews, newsletters, articles, professional papers, and details about books and professional development material that our lawyers have written or contributed to.

We encourage you to share in our expertise.