Contesting a will and family maintenance claims in Tasmania

• Testator's Family Maintenance Act 1912 (Tas) (TAS)

  The principal Act. Section 3 allows the Court or a judge to order provision out of the estate of a deceased person, whether they left a will or died intestate, for an eligible person left without adequate provision for their proper maintenance and support, and to make any order as to costs it thinks fit. Section 3A lists who may apply and section 2 defines spouse, child and stepchild. Section 4 says the application is made by summons and served on the executor or administrator. Section 7 requires the Court to have regard to the net value of the estate and to any independent means of the applicant, section 8 lets the Court refuse an applicant because of their character or conduct, and section 8A lets it consider the deceased person's reasons. Section 11 sets the three month time limit from the date of the grant and the Court's power to extend it.

• Administration and Probate Act 1935 (Tas) (TAS)

  Governs grants of probate and letters of administration in Tasmania and the administration of deceased estates. It preserves the Court's power to summon a person named as executor to prove or renounce probate (section 7), provides that a personal representative is not bound to distribute the estate before one year from the death (section 43), and sets out how a personal representative can advertise for claims against the estate before distributing (sections 54 to 56).

• Wills Act 2008 (Tas) (TAS)

  Sets the formal requirements for a will (section 8: in writing and signed by the will maker in the presence of two witnesses present at the same time, who each sign in the will maker's presence), the Court's power to accept an informal document as a will if it is satisfied beyond reasonable doubt that the deceased intended it to be their will (section 10), rectification of a will, which must be applied for within three months after the death unless the Court extends the time (section 42), and the right of certain people to inspect and copy a deceased person's will (section 63). The Act applies to wills made on or after it commenced on 1 March 2009; the Wills Act 1992 continues to apply to earlier wills except where section 5 applies the new Act.

• Probate Rules 2017 (Tas) (TAS)

  The rules of court for probate practice in the Supreme Court of Tasmania, including the notice of intention that must be published on the Court's website at least 14 days before an application for a grant is filed (rule 33), who may search, inspect or copy a will filed with the Registrar (rule 13), caveats (rules 78 to 83), citations (rules 84 to 87) and probate fees (Schedule 1). Documents must be in the form approved by the Chief Justice.

• Relationships Act 2003 (Tas) (TAS)

  Defines a significant relationship as a relationship between two adults who have a relationship as a couple and are not married to one another or related by family (section 4), and provides for registering significant and caring relationships by deed. Proof of registration is proof of the relationship; otherwise all the circumstances are taken into account, such as the length of the relationship, a shared home, finances, property, commitment to a shared life, care of children and public reputation. Under the Testator's Family Maintenance Act, a spouse includes a person in a significant relationship with the deceased (section 2 of that Act).

• Supreme Court Rules 2000 (Tas) (TAS)

  The general civil procedure rules of the Supreme Court. They apply to probate proceedings unless the Probate Rules show a contrary intention (Probate Rules rule 5), and they cover contentious probate actions (Part 29), Court mediation (Part 20) and litigation guardians for children and adults who cannot conduct a proceeding themselves (rules 292 to 297).

• Superannuation Industry (Supervision) Act 1993 (Cth) (CTH)

  Commonwealth law regulating superannuation funds, including how death benefits are paid. The Supreme Court's Probate Information Kit tells applicants to list superannuation in the estate inventory only if it is to be paid to the estate; a benefit paid to a beneficiary under a binding nomination or at the fund trustee's discretion is not listed as an estate asset.

• Supreme Court of Tasmania

  Hears family maintenance applications (the Testator's Family Maintenance Act defines the Court as the Supreme Court). The Court states that it has exclusive jurisdiction in Tasmania to make orders about the validity of a will, the appointment of an executor or administrator, and the administration of deceased estates.

• Supreme Court of Tasmania - Probate Registry

  Deals with all applications for grants of probate and letters of administration in Tasmania and decides, on an application, which document is the last will and who is entitled to be the personal representative. It publishes the approved forms and information kits, the daily list of notices of intention to apply, and the caveat list, and it handles search requests.

• Supreme Court of Tasmania - Caveats

  Lists the estates over which a caveat has been filed and explains how to lodge one. The Registrar may not order a grant while an effective caveat exists, a caveat expires 6 months after it is filed unless further steps are taken, and the caveator is responsible for renewing it.

• Supreme Court of Tasmania - Mediation

  The Court employs qualified mediators. Parties can opt for mediation, or the Court can refer a civil matter to mediation if it considers this appropriate. Each party must attend with authority to settle.

• Public Trustee Tasmania

  Prepares and stores wills, administers deceased estates, and can act as executor or administrator. Its public information explains who can make a family maintenance claim in Tasmania and the three month period.

• Full Court of the Supreme Court of Tasmania

  Where a civil matter, such as a family maintenance or probate case, has been decided by a single judge, a party has a right of appeal to the Full Court, made up of three or more judges. Appeals from the Full Court go to the High Court of Australia.

1. 01Find out whether a grant has issued

   Check the Court's list of notices of intention to apply, because a notice must be published on the Court's website at least 14 days before an application for a grant is filed, and lodge a search request with the Probate Registry. The search fee ($37.24 from 1 July 2026) is payable upfront, and the Registry says it will endeavour to action searches within 28 days, sooner if the Registrar accepts a reason for urgency. The three month period runs from the date of the grant, so this is the most urgent step.

   Typical timeframe: Days, or up to about 4 weeks for a Registry search

2. 02Confirm you can claim

   Check that you are a spouse (including a partner in a significant relationship), a child (including an adopted child, stepchild or surrogate child), a parent where the deceased left no spouse or children, or a former spouse or partner who was receiving or entitled to receive maintenance from the deceased at the date of death.

   Typical timeframe: Days

3. 03Notify the executor immediately

   Write to the executor or administrator putting them on notice of your intended claim and asking for a copy of the will, the grant and a statement of the estate's assets and liabilities. People named in the will, the spouse, parents and children of the deceased and certain others are entitled to inspect and copy the will (Wills Act 2008 section 63). A letter does not stop the three months running; only filing the application does.

   Typical timeframe: As soon as you decide you may claim

4. 04Prepare and file

   Prepare the application (the Act calls it a summons) and a supporting affidavit dealing with your relationship with the deceased, the adequacy of the provision made, the net estate and your own means. File it in the Supreme Court within three months of the grant and serve it on the executor or administrator (section 4). If the period has passed, apply for an extension at the same time; the extension application must be made before the estate is finally distributed (section 11(4)).

   Typical timeframe: Within three months of the grant

5. 05Directions and evidence

   The Court gives directions. A 2016 procedural guide by the Court's Associate Judge describes the usual directions as the executor's affidavit about the estate, notice of the application to other people who are eligible to claim and to the main beneficiaries, and a timetable for affidavit evidence about the parties' means. The Act also lets the Court require the executor to give full particulars of the estate (section 6).

   Typical timeframe: As set by the Court's directions

6. 06Mediation

   The parties can agree to mediate, or the Court can refer the matter to mediation with one of its own mediators. A Court-appointed mediation attracts a fee ($2,097.20 as at 1 July 2026), shared equally between the parties unless they agree or the Court directs otherwise. Each party must attend with authority to settle.

   Typical timeframe: As set by the Court

7. 07Hearing and orders

   If the matter does not settle it is heard by a judge, who decides whether adequate provision was made and, if not, what provision is proper, having regard to the net estate and the applicant's means (sections 3 and 7), and then deals with costs. A party can appeal from a single judge to the Full Court.

   Typical timeframe: Depends on the Court's list

Costs in Tasmanian family maintenance proceedings are in the Court's discretion: the Act lets the Court make any order as to costs it thinks fit (section 3), so an unsuccessful applicant can be ordered to pay costs, and costs paid out of a small estate reduce what is left for everyone. Court fees are set in fee units and change on 1 July each year. As at 1 July 2026 the Supreme Court's general fee for commencing a cause or matter is $1,136.80 for an individual, a mediation with a Court-appointed mediator costs $2,097.20 (shared equally between the parties unless they agree or the Court directs otherwise), lodging a probate caveat costs $62.72 and a Probate Registry search costs $37.24. You can apply to have civil court fees waived, reduced or postponed, but probate fees cannot be waived. Ask any lawyer for a written costs estimate at the outset and again before any contested hearing, and weigh it against the realistic value of the provision you are seeking.