Making a will in Tasmania

Wills in Tasmania are governed by the Wills Act 2008 (Tas), and dying without a will by the Intestacy Act 2010 (Tas). Wills signed on or before 28 February 2009 still fall under the older Wills Act 1992, according to the Supreme Court's probate page.

What makes a will valid in Tasmania?

Under section 8 of the Wills Act 2008, a will must be:

• in writing, typed or handwritten
• signed by you, or by someone else in your presence and at your direction, with the intention of making the will (the signature doesn't have to be at the foot)
• signed, or your signature acknowledged, in front of two or more witnesses who are present at the same time
• signed by at least two of those witnesses in your presence, though not necessarily in front of each other

An attestation clause isn't essential (s 8(3)), and a will is still valid if a witness didn't know the document was a will (s 9).

Who can witness a will in Tasmania?

The Act doesn't set a minimum age for witnesses, but it does say a person who can't see you sign can't be a witness (s 11). An executor can witness (s 8(7)). Choose two adults who can see clearly and who'd be easy to contact later.

What if a beneficiary witnesses the will?

This is where Tasmania is strict. If someone who receives a gift under the will is also a witness, the gift to them is void, though the rest of the will stands (s 12(1)). The gift is saved only if:

• more than two people witnessed the will and at least two of them weren't beneficiaries or the spouses of beneficiaries (s 12(2)(a))
• everyone who would benefit from the gift failing consents in writing (s 12(2)(b))
• the witness applies to the Supreme Court, usually within 6 months after probate, and proves you knew and approved of the gift and it wasn't the result of fraud, duress or undue influence (ss 13, 14)

A gift to a witness's spouse or partner isn't caught by s 12, as the Tasmanian Law Handbook notes, but it's still wise to avoid. The simple rule: two witnesses who get nothing under the will and aren't partnered with anyone who does. Our guide on who can witness a will compares every state.

Who can make a will in Tasmania?

A will made by someone under 18 isn't valid (s 7). The exceptions are:

• a minor can make a will in contemplation of marriage, but it has no effect if that marriage doesn't take place (s 7(2)(a))
• a married minor can make, change or revoke a will (s 7(2)(b))
• the Supreme Court can authorise a minor to make or change a will; the Registrar must be one of the witnesses and keeps the will (s 20)

You also need testamentary capacity. The Tasmanian Law Handbook describes it as having "sound mind, memory and understanding": you understand what you're doing, the extent of what you own and the claims others may have on you. If someone has lost capacity, the Supreme Court can authorise a will for them (ss 21 to 28).

Does marriage or divorce cancel a will in Tasmania?

Marriage revokes a will in Tasmania, and so does registering a deed of relationship under the Relationships Act 2003 (s 16(1)). Gifts to the person you're married to (or registered with) when you die, and their appointment as executor, trustee or guardian, survive (s 16(2)).

A will made in contemplation of a particular marriage or registration isn't revoked when it happens, whether or not the will says so (s 16(3)). Saying it in the will is still the clearest way to prove it. A will expressed to be made in contemplation of marriage generally isn't revoked by any marriage (s 16(4)).

Divorce, annulment or revoking a registered deed of relationship cancels gifts to your former partner and their appointment as executor, trustee or guardian, unless your will shows a contrary intention (s 17). The will then works as if they had died before you. Separating, or the end of an unregistered relationship, doesn't trigger this, so update your will when a relationship ends.

What if a will wasn't signed properly?

The Supreme Court can treat an unsigned or wrongly witnessed document as a will, but in Tasmania it must be satisfied beyond reasonable doubt that the person intended it to be their will (s 10). That's a higher bar than in most other states.

So don't rely on it. A home-made note or an unwitnessed draft may not get there, and the family bears the cost of trying.

What happens if you die without a will in Tasmania?

The Intestacy Act 2010 sets a fixed order:

• Spouse or partner, no children: your spouse takes the whole estate (s 12).
• Spouse and children who are all also your spouse's children: your spouse still takes the whole estate (s 13).
• Spouse and at least one child who isn't your spouse's: your spouse takes your personal effects, a statutory legacy and half of what's left; your children share the rest (s 14).
• Children, no spouse: your children share equally, with grandchildren taking a deceased child's share (s 28).
• No spouse or children: your parents, then brothers and sisters, then grandparents, then aunts and uncles, with cousins standing in for a deceased aunt or uncle (ss 29 to 32).
• No relatives: the estate goes to the State, which can waive it in favour of dependants and others (ss 37, 38).

The statutory legacy is A$350,000 adjusted for inflation by the consumer price index since the December 2009 quarter (s 7), so the figure that applies today is higher. A spouse includes a married partner, a registered partner, and a partner in a significant relationship that lasted at least two years or produced a child (s 6). Beneficiaries must survive you by 30 days (s 8).

The Public Trustee's page on who inherits without a valid will sets this out, and our guide to dying without a will compares the states.

Where should you keep your will in Tasmania?

Tasmania has no public register or court deposit for the wills of living people. The only exception is a will a minor makes with the Supreme Court's authorisation, which the Registrar keeps. Common places are:

• the Public Trustee, which stores wills it prepared, free of charge
• your lawyer, if a law firm drew up the will
• at home, somewhere fireproof, with a note telling your executor where it is

To find a missing will, families can contact the Public Trustee and use the Law Society of Tasmania's Find a Will service, which sends a weekly notice to every law firm in the state. Whoever holds a will must let beneficiaries, a spouse and others entitled under s 63 inspect it and take copies at their own expense.

How much does a will cost in Tasmania?

If the Public Trustee is your executor, it also charges estate administration fees after your death, set out on its fees and charges page. See how much a will costs for a fuller comparison.

How does probate work in Tasmania?

Probate is the court's confirmation that a will is valid and the executor can deal with the estate. In Tasmania, the Probate Registry of the Supreme Court handles all applications for grants of probate and letters of administration. If you've been named executor, our executor guide explains the job.

Making your will online in Tasmania with Willies

Willies wills are written for Tasmanian law. You answer about 10 minutes of plain-English questions and pay nothing until the end: A$149 for an Essential Will, or A$399 for a Complete Will if you need testamentary trusts, a family trust or SMSF, business interests, overseas assets or blended-family provisions.

A real person checks every will within 2 business days. Yours arrives as a PDF with step-by-step signing instructions. The first year of the Willies Plan is included (storage, unlimited updates and an encrypted digital legacy plan), then it's A$49 a year if you keep it.

How to sign your will in Tasmania

1. Read your will from start to finish. If anything is wrong or missing, tell us before you sign.
2. Choose two witnesses aged 18 or over who can see you sign. Don't choose anyone who receives something under your will, or the husband, wife or partner of anyone who does. In Tasmania, a gift to a witness can be lost.
3. With both witnesses watching at the same time, sign the signing page at the end of your will in pen, and write the date.
4. Each witness then signs while you watch, and writes their full name, address and the date. It's best if all three of you stay together until everyone has signed.
5. Sign the foot of every other page (good practice, not a legal requirement). Once it's signed, don't unstaple, write on or change the will: ask us for an updated one instead.
6. Keep the signed original somewhere safe, tell your executor where it is, and upload a photo or scan of every page to your vault.

Your witnesses need to be with you in person. The Wills Act 2008 requires them to be present at the same time and has no procedure for witnessing over a video call.