Sunday, 25th of March, 2018

Wills, Estates and Funerals

Making a Will


The four Acts that will most likely be encountered with wills and estates are the Wills Act 2008 (Tas)  the Intestacy Act 2010 (Tas)  the Testator’s Family Maintenance Act 1912 (Tas) (the 'Testator's Act'), and the Administration and Probate Act 1935 (Tas). The Wills Act governs the ‘making, alteration, rectification, construction and revocation of wills’. The Intestacy Act deals with intestate estates. The Testator’s Act is intended to ‘assure the family of a deceased person a certain interest in the estate of the deceased person’.


  • Administrator: court authority to act as an administrator.
  • Attestation Clause: An attestation clause is a clause stating that the will was executed (i.e. signed by the testator) in the presence of two witnesses.
  • Beneficiary: person who receives all or part of the deceased person’s estate (there may be several beneficiaries).
  • Estate: the property of the deceased person.
  • Execute: to make a will valid.
  • Executor/Executrix: person appointed in a will to deal with the estate.
  • Grant of Probate: a court order giving the executor permission to deal with the estate.
  • Intestate: having died without leaving a will.
  • Letters of Administration: court authority to act as an administrator.
  • Probate: a certificate indicating that a deceased’s will has been proved as valid, and can now be executed and the estate administered.
  • Testate: having died and left a will.
  • Testatrix/Testator: a person who has died and left a will.

Minimum Age

The minimum age for making a will is 18 years (s7, Wills Act). However, the Supreme Court can authorise a will to be made or altered by a minor in certain circumstances (s20, Wills Act).

What does a will have to contain?

A will must be in writing, typed or handwritten and:

  • Signed by the testator, or by another person in the presence of and under the direction of the testator. The testator does not have to sign at the end of the will (s8(2), Wills Act).
  • There must be at least two other witnesses present at the time of signing, and at least two witnesses must also sign the will in the presence of the testator (but not necessarily in the presence of each other).
  • The signature of the testator (or his/her proxy) must be made with the intention of executing the will (s8, Wills Act).
  • The witnesses do not need to know the contents of the will, or even that it is a will that they are witnessing (s9).

The will must:

  • Appoint an executor;
  • Sell or transfer all property after settling debts;
  • Make adequate provision for all those people for whom adequate provision should be made (such as dependent family); and
  • Be dated, signed and correctly witnessed.

A will should specify that this is your final will, and any previous wills are revoked (to prevent confusion). A will is intended to deal with property only, but it can include requests for funeral arrangements and disposal of your body. Arrangements for surviving dependent minors can also be specified. An executrix/or should be named, but they are not strictly bound to follow all requests stipulated in a will. Consider if a testator requested their body to be flown by private jet to India, and dropped in to the Ganges river from an air balloon.


Prior to the enactment of the 2008 Wills Act, the previous 1840 Act required that a will contain an attestation clause. An attestation clause is a clause stating that the will was executed (i.e. signed by the testator) in the presence of two witnesses. Now, there is just the requirement for the signatures of the executor and witnesses to be on the document. However, if there are circumstances outside the ordinary, such as the testator making a mark rather than signing, or having the will read to them, then an attestation clause will often be included to make the situation clear.

Signing and Witnessing a Will

Often, a solicitor will be present at the signing and witnessing of a will. They will go through a process to ensure that the contents of the will are what the testatrix/or wants in their will. Only a person who is unable to see and attest that  testator has signed a document is absolutely prohibited from acting as a witness (s11, Wills Act). Spouses, beneficiaries, and disinterested parties may witness a will, spouses and beneficiaries only where there are additional witnesses, or where the court has dispensed with that requirement.

Valid Wills

To be valid, a will needs to be signed by the testator, and witnessed by at least two witnesses, who are not the spouse or a beneficiary of the will (s12, Wills Act). So, if there are four witnesses, one of them is the husband of the testatrix, and one of them is a beneficiary, but two are non-interested parties, then the will is valid. However, even if there are two witnesses, and both of them are beneficiaries, a court can declare that section 12 does not apply, if they are satisfied that the will was not the result of fraud, duress, or the exercise of undue influence (ss13 and 14, Wills Act).

Illiteracy, blindness or English second language

There may be circumstances in which a testator cannot read or write, or cannot read or understand English. The new Act makes no provision for illiteracy. However, it can be assumed that in such situations, the common law would apply. This means that the will can be read to the testator by an uninterested party – not a beneficiary or witness. It is to be read in the presence of the witnesses.

Three main steps for executing a will

  • Has the testator read and understood the will? Do the contents reflect the testator’s wishes?
  • Are there two adult witnesses who are not the spouse of the testator or a beneficiary of the will? (ss12 and 14, Wills Act)
  • Have the witnesses seen the testator sign the will? Have they signed the will as witnesses in the presence of the testator? (s8, Wills Act)

How do marriage and significant relationships affect a will?

The Testator’s Family Maintenance Act 1912 (Tas) (the 'Testator's Act') was passed to ensure that a testator’s family was provided for in the event of intestacy or a will that failed to provide for a spouse or children. The Wills Act expresses a similar intention in section 16. Marriage or the registration of a deed of relationship can affect your will. If your will was made in contemplation of the marriage or deed of relationship then the marriage or registration of relationship will not revoke your will. If the will already provides for the partner/spouse, it will not be revoked, nor will any powers given to the spouse/partner under that will.

How does divorce or revocation of a deed of relationship affect a will?

A divorce or revocation of a deed of relationship revokes any beneficial disposition to the spouse/partner, any powers, such as the power of executor, trustee, guardian or advisory trustee; and any grant under the will made in favour the testator’s spouse (s17(1),Wills Act). This does not affect where the spouse is a trustee for beneficiaries, including the spouse’s children. The Wills Act phrases the revocation of a spouse’s interest in the will as ‘the will is to take effect as if the testator’s spouse had died before the testator’ (s17(3)).

Where to Keep a Will

Wills should be kept in a safe place. Often a solicitor will retain a will. Other options are the Public Trustee, trustee companies, insurance companies, and banks. All can hold a will for a testatrix/or. It is important to make copies of a will, in case the original is lost or destroyed. A note of the location of the original will should be made on any copies.

Does a Solicitor have to Draft a Will?

It is not necessary for a solicitor to draft a will, however it is advisable to have legal advice on the drafting of a will where there are complexities, such as children, complicated family situations, or complex financial affairs. Superannuation, the disposition of real property, the death of a beneficiary, and the rights of immediate family members even if they have been disinherited can be complex and have an impact on the validity of all or part of your will.

Who can make a will?

Anyone can make a will, as long as they have testamentary capacity and are above the age of 18 years. This latter requirement can be dispensed with by the court.

Who can be an executor?

An executor must be over 18 years of age. It is preferable that executrixes/ors live in the same state as the testatrix/or, and that two be named, in case one executor dies or can no longer act in that capacity. Traits to consider include: trustworthiness, closeness of relationship, and similarity of age. If a person dies, and no executrix is named, the Supreme Court can appoint one, including a private trustee or the Public Trustee.

DIY Will Kits

There are numerous DIY will kits. You may have seen them on sale at the Post Office. The choice and price is varied for DIY Kits, and a simple google search will offer you many choices, as well as consumer website evaluations of different will kits. Consumer websites unanimously point out that for complex matters, legal advice is best. Complex matters include: superannuation, property division, spouses, ex-spouses, children from different relationships, beneficial charity organisations over family. If you are a single person, with only one living relative (a sibling), you live in rented accommodation, and only have a superb collection of Star Wars figurines that you wish to pass on to your sibling, you are not in a complex situation.

If, however, you have several properties some of which are joint ownership, two marriages, five children all under the age of majority to two separate spouses, and a large amount of superannuation, you are in a complex situation and need legal advice.

Types of Wills

Informal wills

Sometimes it will transpire that a will has not been executed in accordance with the requirements of the Wills Act. This could be that the document purported to be the will has not been properly witnessed, for example. In such circumstances, a court can be satisfied beyond reasonable doubt that the document constituted the deceased person’s will, an alteration, or a revocation of their will (s10, Wills Act). The court can have regard to any evidence, in addition to the document itself, that attests to the testamentary intentions of the deceased. This would include evidence such as statements made by the deceased person, verbally or in writing.

Statutory Wills

Statutory wills are a particular type of will. It is one that has been made, altered, revoked or rectified under the authorisation of the Supreme Court, or the Guardianship and Administration Board (Part 3 of the Wills Act). A statutory will can only be made in situations where a person lacks legal majority – they are still a minor, or the person lacks the testamentary capacity to make a will. Lacking testamentary capacity usually refers to the mental state of the person. But a person may be in a coma, they may have died intestate, and so lack capacity by way of death, or they may lack the necessary level of understanding to execute a will.

What is testamentary capacity?

Testamentary capacity for a living, conscious person, requires that you:

  • Understand that a will expresses your wishes for distribution of your property after your death;
  • Know what assets you have, and know their general value for the purposes of disposing of them to a suitable beneficiary;
  • Are able to decide who will receive your assets under your will, and who might also have a claim on them (such as family members); and
  • Be able to recall the disposition of your will.

A lack of testamentary capacity will oftentimes see the creation of a statutory will either by the Supreme Court or by the Guardianship and Administration Board.

Foreign Wills

A foreign will (i.e. a will made overseas) will be accepted in Tasmania (s60, Wills Act), if it is valid according to the law of:

  • the jurisdiction where it was executed (made);
  • the testator’s usual domicile or habitual residence at the time of execution of will or death;
  • the country of which the testator was a national at the time of execution or death.

So, a will made in Thailand according to Thai laws will be valid in Tasmania. But, a will made in another country contrary to their laws will not be accepted here, as it would not be accepted in that country either.

Changes to Wills

Updating, altering or adding to a will

Prior to the 2008 Wills Act you could not add to a will, and you had to add a codicil – a separate document containing changes, or you would have to execute a wholly new will if you sought to alter it. Section 18 of the Wills Act has changed this. With section 18 alterations require the signature of the testator and subscription of the witnesses to be made somewhere near to the alteration, in the margin, at the foot or end of the of the alteration, or opposite the alteration (s18(2)).

Alternatively, if the matter is complex, or an addition rather than an alteration, a ‘codicil’, a separate document with the change you want included, can be added to the will. Alternatively, it may be easier to have a new will drawn up to include your changes, if the changes are significant. If you have used a DIY kit, you may need another DIY Kit. If you have consulted a solicitor, you will need to again consult a solicitor, preferably the same one, in order to update, alter, or add to a will.

Stopping a will

As noted with the effects of marriage and divorce, these are two ways that a will may be revoked: on marriage or registration of a deed of relationship, or when a divorce is obtained (ss 16 and 17Wills Act). A will is also stopped when another will succeeds it. So, if Jenny executes a will in 1967, but in 2009 executes a new will, the old will is stopped by including in her new will words to the effect that this is her last will, and all other wills are revoked.

Re-starting a will

If, for example, you marry, register a deed of relationship or get a divorce, and your will or a section of it is revoked, then a testator has to re-execute or execute a will showing an intention to revive that will in whole or in part (s19, Wills Act). A will that predates another will cannot be restarted, where that second will states that it is the last will of the testator, and all other wills are revoked.

Intestacy - Dying without a Will

Intestacy is a way of saying ‘died with no will’. An intestate is a person who died without a will. There are rules that govern intestacy, set out in the Intestacy Act 2010 (Tas). The laws can be complicated, and simple. The complicated part is ‘statutory legacy’, which is the amount determined to go to the spouse where there are other beneficiaries entitled under the Act. There are also categories of beneficiary with an intestate estate, ranging from multiple spouses, to children from multiple spouses, to family members.

Spouse’s statutory Legacy

A spouse’s statutory legacy is based on the equation:

R = A x (C/D).

R is the CPI adjusted legacy, A is $350,000, C is the Consumer Price index, current at the time of the intestate’s death, and D is the consumer price index number for the December 2009 quarter. The CPI is the All Groups Consumer Price Index number, available from the Australian Bureau of Statistics.

An example of the equation at work 

Betty dies, intestate, on May 1st, 2011 and her husband Bob survives her. Betty had two children to a previous husband (now deceased). Bob is entitled, under section 14 of the Intestacy Act to Betty’s personal effects, a statutory legacy and one-half of the remaining estate (if any).

The Consumer Price Index number for the December 2009 quarter was: 169.5

The Consumer Price Index current at May 1st 2011 was: 176.8

Bob is entitled to R. To know what R is we take A - $350,000, and multiply it by 176.8/169.5.

176.8/169.5 is 176.8 divided by 169.5, which is 1.04 (rounded to two decimal points). So R = 350,000 x 1.04, which is $365,73.75.

If the estate is not sufficient, then the statutory legacy will abate to what is payable from the estate. The spouse’s statutory legacy makes it clear that the spouse has priority in the intestacy laws.

Only One Surviving Spouse

Section 12 of the Intestacy Act states that ‘if an intestate leaves a spouse but no issue (i.e. children), the spouse is entitled to the whole of the intestate estate. This is also true where the issue are all also children of the spouse (s13). If an intestate estate is large enough, the spouse receives all the intestate’s personal effects, the statutory legacy, and one-half of the remainder (s14). The other half of the remainder can be divided amongst other potential beneficiaries.

More than one spouse: de facto partners and other relationships

A spouse under the Act doesn’t just mean a wife or husband. It can refer to a significant relationship, or a registered personal relationship, which can include a carer. Significant relationships are relationships such as a de facto relationship. So, a person could conceivably be married and in a significant relationship at the same time. Section 6 gives three types of relationship that qualify as ‘spouse’ for the purposes of the Act. These are where the person was:

  • Married to the intestate immediately before the intestate’s death;
  • Party to a registered personal relationship within the meaning of the Relationships Act 2003 (Tas); or
  • Immediately before the intestate’s death was a party to a significant relationship within the meaning of the Relationships Act 2003 of at least two years duration, or had resulted in the birth of a child.

If two or more of these relationships exist, then a different set of rules to ‘one surviving spouse’ applies. The whole of the intestate estate will be divided between the surviving spouses according to rules contained in Part 2, Division 3, sections 23 – 27 of the Intestacy Act. These rules are:

  • Section 25: each spouse is entitled to a share of personal effects, a statutory legacy, and a share in one-half of the remaining (if any) estate
  • Section 26: such entitlements can be determined by one of three means: a written agreement between the spouses, a court order or an equal division of property made by a personal representative of the intestate.

The court can make a distribution order on terms it deems ‘just and equitable’, including allocating the whole of the property to one spouse to the exclusion of other/s (s27).

Children (issue)

Children, where there are no surviving spouses, are entitled to the whole of the intestate estate (s28(1)). Where a spouse or spouses (including ex) survive, and children survive, any remaining estate goes to the intestate’s children (s28(2)). Entitlement invests in equal shares where there is more than one child (s28(3)). Children who predecease an intestate and leave children of their own still receive a share that is then divided equally amongst these children, and if one of these children predeceased the intestate, and had children of their own, those children would receive the share of their parent in equal parts, and so on (s28(4)).

Family: statutory order for next of kin

The hierarchy of inheritance at this point, goes from one spouse – two or more spouses – children – parents (s29) – brothers and sisters (s30) – grandparents (s31) – aunts and uncles (s32) – cousins (s33).

If there are no surviving spouses or children, the entitlement of the parents is in equal shares (s29). If no spouse, children, or parent survives, the estate vests in brothers and sisters in equal shares (s30). If none of these parties survive the intestate, the estate goes to grandparents, in equal shares (s31), and if no grandparents survive, aunts and uncles are the next in the hierarchy of entitlement, also in equal shares (s32(1)). If aunts and uncles predeceased the intestate, then their children are entitled to their deceased parent/s’s presumptive share, to be distributed equally (s32(3)).

Relatives may be able to participate in the distribution of the intestate estate, in separate capacities, for example, if they are the child of a deceased maternal aunt and a paternal uncle, they may be entitled to the estate in both capacities – a cousin twice over (s33). Whether this would entitle them to more than one share may depend on a court ordered disposition.

Dealing with the Estate

Insolvent Estates - Rights of creditors

Where a deceased dies insolvent, the estate can be declared bankrupt, just as if the person was still alive. Before any debts can be discharged, the priority of the estate is to pay the funeral, testamentary and administration expenses (Schedule II, Part 1, s1Administration and Probate Act 1935 (Tas)). But, the real and personal estate (real estate being houses, etc, and personal being other items) of the deceased are assets for payments of debts before they can be disposed of in accordance with the terms of the will (s32, Administration and Probate Act 1935).

If There is No Will

Where there is no will, the Intestacy Act sets out a hierarchy of beneficiaries and procedures, as set out in the Intestacy section.

If There is a Will

If there is a will, an estate will be disposed of in accordance with that will, except where there is the potential for a challenge. See ‘Contesting a Will’.

Are Probate and Letters of Administration Necessary?

Probate and letters of administration are usually necessary to administer a will where the estate contains things like property, large sums of money, valuable items that are not personal goods, shares, trust funds, etc. There are situations where probate and letters of administration are not necessary (see the section on this), but are often useful anyway. Letters of administration and probate are obtained from the Supreme Court of Tasmania. The Supreme Court takes applications for the grant of probate and administration of deceased estates, and can grant:

  • Probate
  • Letters of administration with the will annexed; and
  • Letters of administration.


Probate is where a court has declared that the will of the deceased is valid and registered, and that the authority to administer the deceased estate has been granted to the executor of the will. Once the 30 days waiting period prescribed in the Wills Act has expired (s64, Wills Act) and probate has been granted, the deceased estate may be distributed to beneficiaries and/or for the purpose of discharging debts (including funeral and administration expenses).

See the Supreme Court website for contact details of the Probate Supervisor, and further information.

When Probate and Letters of Administration are not necessary

It is not possible to list all the situations where probate or letters of administration are not necessary. These are some standard situations, but procedure varies depending on institutional practice.


Money held in a joint bank account automatically goes to the survivor of the account when one account holder dies. If the account was only in the deceased’s name, banks can and will usually release enough to cover funeral and associated expenses. Situations in which banks will release funds to the executor include:

  • Where they have probate or Letters of Administration
  • Evidence of the deceased’s account use (such as their ATM card)
  • Sometimes, a death certificate along with the written consent and indemnity forms of family or next of kin consenting to the executor’s access to the account

Building Societies

Building societies will need similar evidence, such as evidence of access to the deceased’s account (such as an ATM card), a death certificate, and letters of indemnity. As with banks, it is useful to have Letters of Administration or Probate.

Insurance Companies

Where a sum is not over $10,000 insurance companies will usually release life insurance policies to the executor or family. Life insurance policies mature on the death of the policy holder, and often the beneficiaries will be mentioned in the life insurance document itself – such as spouses or dependent children.

Real Property – Joint Tenancy

While it is necessary to have probate or letters of administration for real property, the situation of the ‘joint tenant’ does not require either. Joint tenancy, on the death of one joint tenant, means that the tenancy automatically goes to the surviving tenant/s. So, if three people own one third each of a property, and one dies, the two remaining will each receive half shares of that person’s third. Upon the decease of one of the remaining two, the whole of the estate will go to the remaining joint tenant.

The Recorder of Titles, who acts out of the Titles Office (part of the Department of Primary Industries, Parks, Water and Environment), must be informed of this change. The surviving tenant must complete and lodge a correctly completed Registration of an Application to be Registered Proprietor by Survivorship form. There is a fee. There are other requirements.


To transfer ownership of a car, all that is needed is alteration of the name of the owner for registration purposes. This is through the Motor Registry. Simply head to Service Tasmania, or see their website.

Personal Goods

There are no special requirements for distributing personal goods.

Release of Assets

Assets will be released according to probate and Letters of Administration. However, if a testator/rix dies insolvent then assets will be administered under the Administration and Probate Act (ss 32 and 34) to enable the discharge of debts to creditors. Only after these debts are discharged will assets be released to be dispensed under the will.

Funeral Expenses

There is no death duty at either state or federal level.

Funeral expenses are often covered by family, or have been provided for by the deceased with funeral insurance. If no such provisions are made, funeral expenses can be specifically provided for in the will of the deceased, or will come out of the will of the deceased, whether solvent or insolvent, as prescribed in the Administration and Probate Act 1935 (Tas) at section 34(3)  and Schedule II, Part I, section 1. Funeral expenses take priority over any of the debts or benefits that are to come out of a deceased estate.

Who pays for a funeral?

Generally, if there is no funeral fund set up in the will, or the deceased has not made provisions for it with funeral insurance, it is the person who engages the services of the funeral home who will pay for the funeral and associated expenses. This is because the contract for the services is between the funeral home and the person who engages their services, and contracts are between the people who make the contract, nobody else. This means that if there is uncertainty about the contributions that are to be made by other parties, the party who is privy to the contract should make sure of securing funds from others before engaging for funeral services, which they will end up solely liable for.

Unclaimed deceased

Currently, if a person's estate cannot cover the cost of a funeral, or there is no one willing to claim the body, or the relative/s of the deceased are unable to pay for a funeral, the Department of Health and Human Services (DHHS) provides an Essential Care Funeral Package. This is not an assistance package for people on low incomes. For more information see the Coronial webpage.

Burial and cremation

It is important to check a will before proceeding with funeral plans to ensure that the wishes of the deceased are followed in the way their body is to be treated. Sometimes a will sets out exactly how the deceased would like to be laid to rest. If a will is not discovered or read before the funeral it is possible that the funeral arrangements may have been contrary to the express wishes of the deceased.

Emotional or financial distress

If you are under emotional and/or financial stress following the death of a loved one, it is best to contact Centrelink about what to do following a death. The Hobart Community Legal Service cannot provide financial assistance.

Administrative Concerns

Coronial Delay

Coronial delay in release of a body is a situation that may arise. Coroners have legal obligations to carry out their duties properly, and to ensure that they know the cause of death of a deceased. Sometimes there may be delays, as there is more than one coroner and some coroners specialise in certain causes of death. If the death is from causes that one particular coroner specialises in, there may be a delay in securing their service as they may not have been scheduled for duty. For this reason it is important to check with the coroner’s office before proceeding with setting a funeral date or burial date, as the body may not have been released. Only when you are certain of the date of release of the body should funeral and burial arrangements be made.

Obtaining a Death Certificate

Death certificates are issued by the Registry of Births, Deaths, and Marriages. Applications can be mailed to Service Tasmania, or lodged in person at Service Tasmania. You can apply for a standard death certificate, which contains all the details of the deceased person, or an extract of death, which details the name, sex, and date and place of death only. See the Department of Justice site for how to apply, who can apply, and what identification is necessary for a death certificate application. There is also a fee, which is subject to change each financial year.

Inheritance Problems

Adopted Children

The Testator’s Family Maintenance Act 1912 (Tas) (the 'Testator's Act') defines ‘child’ to include ‘adopted child’. The Intestacy Act 2010 (Tas) also regards an adopted child as a child of the deceased for the purposes of distribution of an intestate estate. If there are no complications with the execution of a will, there need not be a reference to either Act.

There are circumstances where adopted children may have been left out of a will, or where the deceased has died intestate. Where there is an intestacy, an adopted child will be considered a child for the purposes of the statutory order for next of kin. But what rights would an adopted child have to make a claim under the Testator’s Act?

Under the Testator’s Act, the spouse, children and parents of a deceased person can claim under the Act (s3A), whether the person died testate or intestate (s3). As mentioned, ‘child’ includes an adopted child. The procedure is to make an application to the court for a share in the estate. The Court is required to consider the net value of the estate of the deceased person, and whether the applicant has means of support from other sources (s7).

The discretion of the court is broad, and includes the discretion to refuse an application on the basis of the character or conduct of any person by or on behalf of whom the application was made (s8). Where the deceased left a valid will, the court may have regard to the reasons, if they can be found, for making the dispositions as were made in that will (s8A).

Ex-Nuptial (Illegitimate) Children

The Status of Children Act 1974 (Tas) states that all children are to be of equal status, whether their parents were married or not (s3). This means that all children of a deceased have rights under the Testator’s Act, and the Intestacy Act. Where a will does exist, an example of the operation of the equal status of children would be: the will states ‘my remaining property is to be divided equally amongst my children’, and there are 2 children to a current husband, and 2 to a de facto relationship, then all 4 children will receive a equal share. However, if the testatrix writes ‘my remaining property is to be divided equally between my 2 children to my current marriage to Bob’, then there is an intention to exclude the other children. They may still be able to bring an application under the Testator’s Act.

Stepchildren and half-siblings

Step-children are not considered to be children of the deceased. However, half-brothers or half-sisters of the deceased are considered to be ‘sister’ or ‘brother’ when reference is made to such in a will. Where a deceased dies intestate, half-brothers and half-sisters are entitled to participate in the estate of the intestate as full siblings.

Executors and Trustees


Executors are charged with administering the will. It is best to appoint more than one executor. Problems that can arise with executors include:

  • There being no executor appointed. The Supreme Court Probate and Administration division can step in to appoint a person to act as an executor or administrator.
  • The executor does not wish to act. If an executor renounces their role, the duties will fall to another executor named in the will, or the Supreme Court will appoint one.
  • The executor dies before the testator. If there is another executor, the duties under the will fall to them. Otherwise, the Supreme Court will step in.
  • The executor dies after the testator. If this happens, the executor of the dead executor’s estate becomes executor of the deceased estate.

Duties of Executors

The duties of executors are to collect and distribute the assets of the deceased estate and distribute them to beneficiaries. This is subject to issues such as debts, certainty that the will is the last will of the deceased, and the waiting period after the death of the testator to ensure that the beneficiaries survive the testator for 30 days (s49Wills Act).

Before distribution of gifts or assets, the executor is the owner of the deceased’s property. The executor is responsible for selling assets if there are money gifts in the will, but no money.

Rights of Beneficiaries against Executor

A beneficiary can only complain to the Supreme Court about an executor for failing to act with diligence on the behalf of the beneficiaries.

Payment of Executors

Payment of executors can be provided for in the will. Often, executors are also beneficiaries. Solicitors cannot receive a commission for execution of a will unless the deceased sought independent legal advice prior to signing the will.


Sometimes a person will be designated as a trustee and an executor. While an executor’s role finishes with the collection and distribution of the deceased’s assets, a trustee’s role is ongoing. For example, a trustee may be requited to continue to perform duties under the will for the continued maintenance of young children, or where there is money to be administered over a longer period.

The general duties of a trustee are to act in good faith, to act honestly, and to carry out the particular duties of the trust given to them under a will.

Distributing the Property

Distribution of Gifts

When gifts are made in a will, the obligation on the executors of the will is to distribute such gifts. However, beneficiaries do not have any right to the property of the deceased up until the actual distribution.


There can be problems where a beneficiary is dependent on the deceased’s estate for income. The Wills Act makes provision for this in allowing personal representatives of the deceased (such as the executor) to make maintenance distributions within the 30 day waiting period. The distribution must be in good faith. If the beneficiary survives the testator for 30 days, the maintenance distribution will be deducted from their share of the estate. If they do not survive the testator for 30 days, the maintenance distribution will be classified as an administration expense (s64Wills Act).

Payment of Debts

Before any of the estate can be apportioned to beneficiaries, the debts of the deceased must be discharged.

Legal Actions of the Deceased

Legal actions by and against the deceased (with some exceptions) may continue after the death of the deceased. This includes such actions as workers’ compensation actions.

Contesting a Will

For validity

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 Act 2003 (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).

Providing for the needs of a person with a disability

It is important for everyone to make a will. This particularly applies if a person has an intellectually disabled child who is unable to look after their own property. A will can be made flexible enough to allow for improvements in a person with a disability's ability.

Where there is no will, a disabled child will be entitled to a share of the parent's estate (unless the estate is small and the person dies leaving a spouse), but where there is no specific provision in a will the law does not have the flexibility to ensure that the share is used to the person with a disability's maximum benefit. This means that it is very important to ensure that the will is clear in setting out the interests of that person.

Providing for a Person with a Disability

There are no hard and fast rules about making adequate provision for disabled children, but parents should be wary of only making a small provision for their disabled child. Parents sometimes do this because they feel that their disabled child is permanently placed in an institution or other residential facility, and that the child has modest needs. It is impossible to predict what the needs of the person with a disability will be ten or thirty years after the parents die (for example, the residential facility may have closed down or it may have had to put its fees up to well above the pension level).

Parents sometimes give all of their property to their non-disabled children and rely on them to look after their disabled brother or sister. One danger of this approach is that the non-disabled children may die first, perhaps many years before the person with a disability. Where parents do make much greater provision for one child than another the Supreme Court can vary the will under section 3 of the Testators Family Maintenance Act 1912 (Tas).

It is not normally desirable to leave property outright to an person with an intellectual disability, although this will not always be the case. Some disabled people have enough understanding to look after their property and to make wills themselves. The make-up of the estate, the person's nature and their level of disability should be considered in each situation. It is possible to give some property outright, with the bulk of property being given on trust.

Where a person with a disability is ‘absolutely entitled’ to property from a parent's estate because there is no will, or there is a will but it contains an outright gift to the person with a disability rather than setting up a trust, the property is handed to the person with a disability providing they have enough understanding to look after the property. If the person with a disability does not have that understanding then the person who has administered the parent's estate (the executors or, if there was no will, the administrator) is not allowed to hand the property over to the person with a disability. In these circumstances the person with a disability may have an administrator appointed under the Guardianship and Administration Act 1995 (Tas) who has legal authority to administer that person’s estate. Application can be made to the Guardianship and Administration Board for an administrator to be appointed.


The alternative to leaving property outright to a person with a disability is to set up a trust under the will so that the property can be used for the benefit of the person with a disability. A trust basically amounts to appointing people who are called ‘trustees’ to use property in the way and for the purposes specified in the will.

For example, if parents only have one child, and that child is disabled, the parents could leave all their property to be used by trustees for the benefit of the disabled child. The will should say what happens to whatever property is left when the person with a disability dies. Income of a trust under a will is taxable. This means that it may be better to use money to buy something which can be used by the person with a disability (for example, a car or somewhere to live) rather than have it earn interest.

If parents have three children and only one of them is disabled, parents could, for example, leave one-third of their property to each of the non-disabled children, and the other third could be left in trust to be used for the benefit of the disabled child.

The will can be very specific about how much the trustees have to spend on the person with a disability, or it can give the trustees a wide discretion. Parents normally decide to give trustees a very wide discretion to pay to (or use for the benefit of) the person with a disability as much of the income of the trust as the trustees see fit. A similar discretion is normally also given to use the actual property which is being held in trust. Reasons for giving these broad discretions include:

  • they create maximum flexibility for the trustees to react to the changing needs and circumstances of the person with a disability;
  • they allow the trustees to remove or at least minimise the effect of the will on the person with a disability's social security benefits.

A disadvantage of giving broad discretions is that it limits what can be done if the person with a disability, or a friend of the person with a disability, does not feel that the trustees are fairly treating the person with a disability. This emphasises the importance of choosing suitable trustees.

The Trustees

The trustees will normally be the same people as the executors named in the will. The choice of trustees is obviously very important because of the discretion they are given and the length of time that they will have to administer the estate. Qualities to look for in trustees include:

  • youth — they may have to act for decades;
  • business sense — knowledge of investments, income tax and social security benefits;
  • independence from the family situation — trustees often will need to make decisions about how property is to be divided between the will-maker's children;
  • continued interest in the person with a disability — an awareness of their needs and desires and of advances in the methods of helping disabled people.

It is normally best not to appoint non-disabled children as the only trustees. This is because parents normally say in their wills that whatever is left over of the person with a disability's share when that person dies goes to the non-disabled children or their families. This places the non-disabled children in a difficult situation if they are the only trustees, because they know that whatever they do not spend on the person with a disability they end up getting themselves.

It is also better to have more than one trustee. They might include a non-disabled child, an accountant or solicitor or trustee company, an ‘advocate’ of the person with a disability and a friend of the family who takes an interest in the person with a disability.

If parents have no suitable people to appoint, it is best to appoint the Public Trustee or a private trustee companies. The advantages of these organisations are that they should continue to exist indefinitely, and they are cautious and sensible about investing money. Their disadvantage is that there are costs associated with their administration of the estate, and their involvement can be impersonal. The way to at least partially overcome this latter disadvantage is to include in the will a direction saying that the trustees must consult with, for example, the person with a disability and the persons or organisations providing day-to-day care for the person with a disability.

If one trustee dies, it is normally necessary for a new one to be appointed. Parents can set out in the will how this is to be done if they wish. Otherwise the Trustee Act provides a mechanism for this.

The remuneration to be received by the trustees should be arranged with the proposed trustees. It may be a percentage commission, a gift of a specified sum or the normal fees for an accountant or solicitor. Trustee companies normally charge a commission based on the initial value of the estate and a percentage of all income passing through the estate. If nothing is said in the will about remuneration, then the trustees can apply to the Supreme Court for a grant of commission.

The trustee's powers will generally be wide. It is very important that there be power to invest in some capital gain producing assets. In framing powers of investment potential, housing options should particularly be considered.

Housing for Disabled Children

It is obviously a matter of great concern to parents to be able to provide a good standard of housing for their disabled child on a long term basis.

If parents are in a position to leave their house to be lived in by the person with a disability this can be done through a trust in the will, providing the trustees can organise suitable backup facilities. For example, if parents have a three bedroom house it could be lived in by their disabled child and two boarders and the rent from the boarders could pay for the backup facilities. Sometimes a live-in houseparent might be necessary. The backup facilities might be available through the Department of Health and Human Services or local non-government organisations.

If parents are not sure whether suitable backup facilities will be available, they can direct their trustees to investigate the situation. If the facilities prove not to be available, the trustees can then be empowered to sell the house and hold the proceeds in trust for the person with a disability's benefit.

Sometimes parents might be able to give an organisation the use of a house in return for a promise to run the house as a group home for the disabled child and others. In this situation the trustees could be given power to terminate the arrangement if the organisation did not keep its side of the bargain.

Not too many parents would be able to leave a house in the way set out in the previous paragraphs. However, there are ways that such parents or their trustees could band together and buy a house to be occupied by the disabled child of each of them.

One way this could be done is through setting up a company similar to companies that own blocks of 'company title' home units. Each lot of trustees would own a share in the company and the share would entitle the person with a disability to live in the house. After the person with a disability died or moved out the trustees would sell their share to someone else.

Testamentary Guardians

Testamentary guardians are people appointed in the will to take over the parent's role as guardians of their children. However, as with parents, their powers only apply until the person with a disability is 18. There is no way that a parent can appoint a guardian for the rest of the person with a disability's life. However, just as many parents often continue to exercise a parental role in an informal way after a person with a disability reaches 18, so there will sometimes be someone who will fill this role when the parents die. Parents could in their wills declare it to be their wish that a named person do so.

Centrelink Payments

The disability support pension is affected by a person with a disability’s income. Income is defined in the Social Security Act 1991 (Cth) as an income amount earned, derived or received by the person for the person's own use or benefit. This would include someone who received benefit from a trust.

Rules about income-stream products such as annuities are complex and constantly changing. Parents or trustees should see a Centrelink financial adviser.

Property Not Governed by a Will

It is important to remember that not all property will always be covered by a will. For example, life insurance policies and superannuation benefits often go to a person specified in the policy or specified to the superannuation fund. If parents want these sorts of things to be covered by a trust, they need to make suitable arrangements.

Where a will-maker wishes to benefit a person with a disability, it is very important to have the will drawn up by a solicitor (or the Public Trustee or a trustee company if the parents want a trustee). Wills setting up trusts for disabled people are more complicated than most wills. Because of this, the will-maker should check that the solicitor is familiar with this area of the law.

Rights of a Beneficiary

A ‘beneficiary’ is a person who receives a gift or any other benefit under a will. An intellectually disabled beneficiary might:

  • receive a straight gift of money or other property;
  • be allowed to live in the family home for as long as they want;
  • be entitled to the income earned by a ‘Trust Fund’ set up under the will.

The most common situation is where the executors appointed in the will have a wide discretion about how much money they will pay to or use for the benefit of the intellectually disabled beneficiary. The job of the ‘executors’ or ‘trustees’ is to deal with the deceased person's property as spelt out in the will.

An intellectually disabled beneficiary has the same rights as any other beneficiary. These include rights to:

  • take executors to court if they have failed to comply with the will;
  • reimbursement where executors have used money for purposes not allowed in the will or where they have lost estate property through negligence;
  • ask the court to remove executors who are not doing their job properly;
  • ask the Registrar of the Probate Division of the Supreme Court to force executors to provide information about property income and expenditure.


Jane is an intellectually disabled woman whose parents die leaving all of their estate to Jane's brother and sister. Jane (or someone on her behalf) applies to the court for a variation of the will. The court would probably order that Jane receive a good sized share of the estate. How big a share she would receive would depend on all of the circumstances. Sometimes she may get less than her brother and sister, sometimes more.

If Jane's parents set up a $10,000 trust fund for her but gave the rest of their $200,000 estate to Jane's brother and sister, the court would probably order that Jane's share be increased.

Alternatively, Jane's parents may have divided their estate equally between the three children and appointed trustees to invest Jane's share and to use the income as they see fit. If Jane is capable of living in, and wants to live in, a group home, but the trustees will not pay for this, Jane can apply to the court to intervene. The court might order that Jane's share be used to buy a house for herself and some friends or might order the trustees to pay rent for a house.



Solicitors fees will vary according to the firm, the size of the estate, and according to the service being sought, such as if you were looking to have a will written up, or have a solicitor act as an executor of the will.

Public Trustee

There are different fees and charges associated with the public trustee, depending on the role that they play. For example, if you appoint the Public Trustee as the sole executor, it will cost $20 for a single person, or $30 for a couple to have the will created.

You can either contact the Public Trustee on 1800 068 784 to discuss fees and charges, or see their website for information on costs for wills, Enduring Power of Attorney, administration of an estate, to act as an Attorney, a Trustee, or as a Financial Administrator.

Contacts and Resources

The Tasmanian Law Society provides a database of firms that specialise in areas of law, including Wills, Testator’s Family Maintenance, and Administration of Estates. Simply go to their website and select one of these categories from the ‘Areas of Practice’ drop down menu to find a firm.

There is also the option of finding by Town or Suburb for the practice area.

The Legal Aid Commission of Tasmania has some information on wills.

The law library of the University of Tasmania has excellent resources available to students, staff and library members. Also see the Supreme Court of Tasmania website for information on contacts for their Probate and Administration responsibilities.

The Tasmanian Perpetual Trustees also provide A Practical Guide to Estate Planning and Administration.


This does not constitute legal advice and the Tasmanian Law Handbook should not be used as a substitute for legal advice. No responsibility is accepted for any loss, damage or injury, financial or otherwise, suffered by any person acting or relying on information contained in it or omitted from it.