This law lets the Court require a deceased person’s estate to make financial provision for people left without adequate maintenance, by awarding lump sums, life or dwelling interests, or funding a dwelling purchase.
It affects applicants (spouses, children, some parents and former partners), executors/administrators (service, disclosure, trustee duties) and beneficiaries (reduced or reallocated distributions). It matters because judicial orders can override private testamentary choices, shift costs across the estate, and create ongoing trustee or administration burdens.
The Testator's Family Maintenance Act 1912 establishes a statutory mechanism by which the Supreme Court may intervene in the distribution of a deceased person's estate where inadequate provision has been made for the proper maintenance and support of specified family members. At its core, s.3(1) provides that where a person dies testate or intestate and any eligible person is left without adequate provision, the Court may order such provision as it thinks proper out of the estate, having regard to all the circumstances. This discretionary power is deliberately wide: the Court is not limited to replicating what a reasonable testator might have done but may fashion relief that addresses the applicant's needs while respecting the overall estate.
Section 3(2) elaborates on the forms of provision available. In addition to the general power in s.3(1), the Court may order a lump sum, a life interest or lesser interest in a dwelling-house already forming part of the estate, or a life interest in a dwelling-house to be purchased for the applicant. Subsection (3) reinforces this by permitting the Court to direct that estate moneys be used to purchase the fee simple of real property notwithstanding any contrary direction in the will. These provisions reflect a legislative intent to provide flexible, practical remedies rather than purely monetary ones.
The Act further allows an application by or on behalf of one eligible person to be treated as made on behalf of all eligible persons (s.3(4)), thereby streamlining proceedings and engaging the notice requirements of s.11. Executors and administrators are given standing under s.3(5) to initiate or seek directions regarding claims on behalf of minors or persons without mental capacity.
Eligibility is exhaustively stated in s.3A. An application may be made by or on behalf of the spouse of the deceased, the children of the deceased, the parents (but only if the deceased died without leaving a spouse or children), a former spouse whose marriage was dissolved or annulled and who was receiving or entitled to maintenance at the date of death, and a person whose significant relationship had ceased but who was likewise receiving or entitled to maintenance.
Current sections
Direct links to the current provisions in Testator's Family Maintenance Act 1912.
[Section 2 Amended by 6 Geo. V No. 65, s. 2 ][Section 2 Amended by 25 Geo. V No. 78 ][Section 2 Amended by No. 52 of 1957, s. 2 ][Section 2 Amended by No. 46 of 1991, s. 4 and Sched. 2 ][Section 2 Amended by No. 34 of 1995, s. 4 ]
(1) In this Act –
adopted child –
(a) in the case of a child that is adopted in this State, means a child that is adopted by a person, or by a person and his spouse jointly, in accordance with the law relating to the adoption of children; or
(b) in the case of a child that is adopted elsewhere than in this State, means a child that is adopted by a person, or by a person and his spouse jointly, in accordance with the law of the State, Territory, or country where the adoption takes place, as in force at the date of the adoption;
(a) who is a child of the other person by virtue of the operation of section 26(1) of the Surrogacy Act 2012 , or a law, of another State or a Territory or a foreign country, that corresponds to that Act; and
(b) who has not ceased to be a child of the other person under that Act or law;
(2) [Section 2 Subsection (2) substituted by No. 38 of 2015, s. 55, Applied:13 Oct 2015] For the avoidance of doubt, the definition of stepchild, as substituted by the Justice and Related Legislation (Miscellaneous Amendments) Act 2015, does not apply in respect of a claim against the estate of a person whose death occurred before the commencement of that Act.
Claims for maintenance against estate of deceased person
3 Claims for maintenance against estate of deceased person
[Section 3 Substituted by No. 52 of 1957, s. 3 ]
(1) If a person dies, whether testate or intestate, and in terms of his will or as a result of his intestacy any person by whom or on whose behalf application for provision out of his estate may be made under this Act is left without adequate provision for his proper maintenance and support thereafter, the Court or a judge may, in its or his discretion, on application made by or on behalf of the last-mentioned person, order that such provision as the Court or judge, having regard to all the circumstances of the case, thinks proper shall be made out of the estate of the deceased person for all or any of the persons by whom or on whose behalf such an application may be made, and may make such other order in the matter, including an order as to costs, as the Court or judge thinks fit.
(2) In addition to, and without prejudice to, any other powers conferred on the Court or a judge by subsection (1) of this section, the Court or judge may order that the provision to be made out of the estate of the deceased person shall consist of –
(a) the payment to the applicant of a lump sum;
(b) a life interest or any lesser interest in any dwelling-house belonging to that estate; or
(c) a life interest or any lesser interest in a dwelling-house that the Court or judge may order to be purchased for occupation by the applicant –
and may, in any case, order that that provision shall be made upon and subject to such terms and conditions, if any, as the Court or judge may think desirable in the circumstances of the case.
(3) For the purposes of paragraph (c) of subsection (2) of this section, the Court or judge may, notwithstanding any provision or direction to the contrary in the will of a deceased person, order that any moneys belonging to or forming part of the estate of that person shall be expended in the purchase of the fee simple of any real property.
(4) Where an application under subsection (1) of this section is made by or on behalf of any person, the Court or a judge may order that it shall be regarded as an application on behalf of all persons who are entitled under this Act to make such an application, and if the Court or a judge so orders, the application shall, for the purposes of section eleven , be treated as an application made by all of those persons.
(5) The executor or administrator of the estate of a deceased person, on behalf of a person who is entitled to make an application under subsection (1) of this section and who is not of full age or mental capacity, may –
(a) make an application under that subsection; or
(b) apply to the Court or a judge for directions as to whether he should make an application under that subsection –
and, in the latter case, the Court or judge may treat the application for directions as an application under that subsection on behalf of that person.
3A
Persons entitled to claim under this Act
3A Persons entitled to claim under this Act
*[Section 3A Inserted by No. 52 of 1957, s. 3 ]**[Section 3A Amended by No. 34 of 1995, s. 5 ]*An application under subsection (1) of section three for provision out of the estate of a deceased person may be made by or on behalf of all or any of the following persons, that is to say:
(d) A person whose marriage to the deceased person has been dissolved or annulled and who at the date of the death of the deceased person was receiving or entitled to receive maintenance from the deceased person whether pursuant to an order of a court, or to an agreement or otherwise; and
(e) [Section 3A Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] A person whose significant relationship, within the meaning of the Relationships Act 2003 , with the deceased person had ceased before the date of the death of the deceased person and who was receiving or entitled to receive maintenance from the deceased person whether pursuant to an order of a court or to an agreement or otherwise.
4
Application by summons in chambers
4 Application by summons in chambers
(1) *[Section 4 Subsection (1) amended by No. 52 of 1957, s. 4 ]*Every such application shall be made by summons in chambers, entitled "In the matter of the Testator's Family Maintenance Act 1912 , and in the matter of the estate of _______ deceased".
(2) *[Section 4 Subsection (2) substituted by No. 52 of 1957, s. 4 ]*A summons under this section shall be served on –
(a) the executor of the will of the deceased person or the person to whom letters of administration with the will annexed have been granted, or, in the case of an intestate estate, the administrator of that estate; and
(b) such other persons as the Court or a judge may direct to be served therewith.
(3) The judge may, if he thinks fit, adjourn such summons into Court.
5.
5.
[Section 5 Repealed by No. 52 of 1957, s. 5 ]
6
Powers of Court or judge
6 Powers of Court or judge
*[Section 6 Amended by No. 52 of 1957, s. 9 and Sched. 1 ]*At the hearing of such application the Court or judge shall inquire fully into the estate of the deceased person, and for that purpose may –
(a) summon and examine the persons who are entitled to make an application under this Act, or such of them as the Court or judge may think it desirable to examine, and also such witnesses as may be necessary; and
(b) require the executor or person applying for probate or letters of administration to furnish full particulars of the estate.
7
Court or judge to consider net estate and means of widow or child
7 Court or judge to consider net estate and means of widow or child
*[Section 7 Amended by 25 Geo. V No. 78 ]**[Section 7 Amended by No. 52 of 1957, s. 9 and Sched. 1 ]*In granting or refusing any such application, and in fixing the amount of the provision to be made under this Act for any person who is entitled to make an application under subsection (1) of section three, the Court or judge shall have regard, inter alia, to –
(a) the net value only of the estate of the deceased person, as ascertained by deducting from the gross value thereof all debts, testamentary and funeral expenses, and all other lawful liabilities to which the said estate is subject; and
(b) whether any such person is entitled to independent means, whether secured by any covenant, settlement, transfer, or other provision made by the deceased person during his life or derived from any other source whatsoever.
8
Cases in which Court or judge may refuse application
8 Cases in which Court or judge may refuse application
(1) The Court or judge may refuse any such application if the character or conduct of any person by or on behalf of whom the application is made is such as in the opinion of the Court or judge should disentitle him or her to the benefit of any provision under this Act.
(2) The Court or judge in making any order under this Act may impose such conditions, restrictions, and limitations, whether to prevent, restrict, or defeat any alienation or charge of or upon the benefit of any provision made under such order or otherwise, as the Court or judge may think fit.
(3) [Section 8 Subsection (3) added by 25 Geo. V No. 78 ][Section 8 Subsection (3) amended by No. 52 of 1957, s. 9 and Sched. ][Section 8 Subsection (3) omitted by No. 36 of 1974, s. 12 and Sched. 1 ]. . . . . . . .
8A
Evidence as to deceased's reasons for dispositions
8A Evidence as to deceased's reasons for dispositions
[Section 8A Inserted by No. 52 of 1957, s. 6 ]
(1) On the hearing of an application under subsection (1) of section three, the Court or judge may have regard to the deceased person's reasons, so far as they are ascertainable, for making the dispositions made by his will, or for not making any provision or further provision, as the case may be, for any person, and the Court or judge may accept such evidence of those reasons as it or he considers sufficient, whether that evidence would otherwise be admissible in a court of law or not.
(2) Nothing in this section shall be construed as restricting the evidence that is admissible, or the matters that may be taken into account, on the hearing of an application under subsection (1) of section three.
9
Contents of order
9 Contents of order
(1) *[Section 9 Subsection (1) amended by 25 Geo. V No. 78 ]**[Section 9 Subsection (1) amended by No. 52 of 1957, s. 7 ]*Every order under this Act making provision for any person shall specify, inter alia –
(a) the amount and nature of such provision;
(b) the manner in which such provision shall be made; or be raised or paid, out of some, and what, part of the estate of the deceased person;
(c) how and by whom the burden of any such provision shall be borne; and
(d) any conditions, restrictions, or limitations imposed by the Court or judge.
(2) *[Section 9 Subsection (2) amended by No. 52 of 1957, s. 7 ]*The Court or judge shall in every case in which provision is made under this Act direct that a certified copy of such order be made upon the probate of the will or letters of administration, with the will annexed, of the estate of the deceased person, or, as the case may be, upon the letters of administration of the estate of the deceased person, and for that purpose shall retain such probate or letters until such copy is made.
(3) *[Section 9 Subsection (3) substituted by No. 52 of 1957, s. 7 ]*Subject to this Act, every provision made under this Act operates and takes effect –
(a) in the case of the estate of a person who dies testate, as if it had been made by a codicil to the will of the deceased person executed immediately before his death; or
(5) *[Section 9 Subsection (5) added by No. 52 of 1957, s. 7 ]**[Section 9 Subsection (5) amended by No. 57 of 1970, s. 2 ]*The Court or a judge may, at any time, on the application of the executor or administrator of the estate of a deceased person or of any person who is beneficially entitled to, or interested in, any part of that estate –
(a) rescind any order making any provision under this Act out of that estate or any part thereof; or
(b) alter any such order by increasing or reducing the amount of any provision made thereby or by varying such order in such manner as the Court or judge thinks proper.
(5A) *[Section 9 Subsection (5A) inserted by No. 57 of 1970, s. 2 ]*The Court or a judge shall not, in the exercise of the power conferred on it or him by paragraph (b) of subsection (5) of this section, alter an order under this Act so as to disturb a distribution of any part of the estate that was lawfully made before the making of the application for the alteration.
(6) *[Section 9 Subsection (6) added by No. 52 of 1957, s. 7 ]*A person who makes an application under subsection (5) of this section shall cause notice of the application to be served on all persons taking any benefit under the order sought to be rescinded or altered.
(7) *[Section 9 Subsection (7) added by No. 52 of 1957, s. 7 ]*Upon an order being made under this Act, the portion of the estate comprised therein or affected thereby shall be held subject to the provisions of the order.
10
Provision for class fund
10 Provision for class fund
[Section 10 Substituted by No. 52 of 1957, s. 8 ]
(1) Without prejudice to the powers conferred on the Court or a judge under any other provision of this Act, the Court or a judge may order that any amount specified in an order made on an application under subsection (1) of section three shall be set aside out of the estate to which the order relates and held on trust as a class fund for the benefit of two or more persons specified in the order (being persons who are entitled under section three A to make an application under that subsection).
(2) Where an amount is ordered to be held on trust as a class fund for any persons, pursuant to this section, that amount shall be invested, and the trustee may –
(a) in his discretion but subject to such directions and conditions as the Court or judge may give or impose, apply the income and capital of that amount, or so much thereof as the trustee from time to time thinks fit, for or towards the maintenance or education (including past maintenance or education provided after the death of the deceased person), or the advancement or benefit, of those persons or of any one or more of them to the exclusion of the other or others of them, in such shares and proportions, and generally in such manner, as the trustee thinks fit; and
(b) so apply the income and capital of that amount notwithstanding that only one of those persons remains alive.
(3) For the purposes of this section, the expression trustee means the executor or administrator of the estate of the deceased person unless the Court or judge appoints any other trustee (whether by the order creating the class fund or subsequently), in which case it means the trustee so appointed.
(4) If the trustee is not the executor or administrator of the estate of the deceased person, the Court or judge may give such directions as it or he thinks fit relating to the payment to the trustee of the amount that is to be held on trust as a class fund, and may exercise any power conferred on the Court by section forty-seven of theTrustee Act 1898 , either on the creation of the class fund or at any time during the continuance of the trusts thereof.
10A
Incidence of payments ordered
10A Incidence of payments ordered
[Section 10A Inserted by No. 52 of 1957, s. 8 ]
(1) The incidence of any payment directed to be made by an order under this Act shall, unless the Court or a judge otherwise orders, fall ratably upon the whole estate of the deceased person, or, where the authority of the Court does not extend or cannot be made to extend to the whole estate, ratably upon such part of the estate as is subject to the authority of the Court.
(2) The Court or a judge may exonerate any part of the estate of a deceased person from the incidence of an order under this Act, after hearing such of the parties who may be affected by the exoneration as the Court or judge thinks necessary, and may, for that purpose, direct any executor or administrator to represent, or appoint any person to represent, any of those parties.
(3) The Court or a judge may, at any time, fix a periodical payment or lump sum to be paid by any beneficiary in the estate of the deceased person to represent, or in commutation of, such proportion of the sum ordered to be paid as falls upon the portion of the estate in which that beneficiary is interested, and may exonerate that portion from further liability, and may direct in what manner the periodical payment shall be secured, and to whom the lump sum shall be paid, and in what manner it shall be invested for the benefit of the person to whom the commuted payment is payable.
10B
Adjustment of estate duty
10B Adjustment of estate duty
*[Section 10B Inserted by No. 52 of 1957, s. 8 ]*For the purpose of apportioning the duty payable on the estate of a deceased person, any provision directed to be made by an order under this Act shall –
(a) if the deceased person died testate, be deemed to be a bequest made by the deceased person by a codicil executed immediately before his death; or
(b) if the deceased person died intestate, be deemed to be a bequest made by the deceased person as if effected by a will made by him immediately before his death.
11
Time within which application to be made
11 Time within which application to be made
(1) *[Section 11 Subsection (1) amended by 6 Geo. V No. 65, s. 6 ][Section 11 Subsection (1) amended by 25 Geo. V No. 78 ][Section 11 Subsection (1) amended by No. 46 of 1954, s. 3 and Sched. 2 ]**[Section 11 Subsection (1) amended by No. 52 of 1957, s. 9 and Sched. 1 ]*Except as provided by subsection (2) of this section, the Court or judge shall have no jurisdiction to hear any application, or to make any order under this Act, unless the summons hereinbefore mentioned be taken out before or not later than three months after the date of grant of probate of the will of the deceased person, or letters of administration of the estate of the deceased person, as the case may be.
(2) *[Section 11 Subsection (2) added by No. 46 of 1954, s. 3 and Sched. 2 ]*Notwithstanding anything in subsection (1) of this section, upon application being made in that behalf by a person claiming the benefit of this Act, the Court or a judge may, after hearing such of the persons affected or likely to be affected by that application as it or he may think fit, extend the time limited by that subsection for the taking out of a summons for such further period as the Court or judge may think necessary.
(3) *[Section 11 Subsection (3) added by No. 46 of 1954, s. 3 and Sched. 2 ]*The powers conferred on the Court or a judge by subsection (2) of this section may be exercised notwithstanding that the time limited by subsection (1) of this section for the taking out of a summons may have expired (whether that time expired or expires before or after the commencement of this subsection).
(4) *[Section 11 Subsection (4) added by No. 46 of 1954, s. 3 and Sched. 2 ]*An application under subsection (2) of this section shall be made before the final distribution of the estate of the deceased person, and no distribution of any part of the estate made before the making of an application under that subsection shall be disturbed by reason of that application or of any order made thereon or in consequence thereof.
Source text: opening excerpt
Sourced from Tasmanian Legislation Online (legislation.tas.gov.au), CC BY 4.0.
1 Short title
1 Short title
This Act may be cited as the Testator's Family Maintenance Act 1912 .
2 Interpretation
2 Interpretation
[Section 2 Amended by 6 Geo. V No. 65, s. 2 ][Section 2 Amended by 25 Geo. V No. 78 ][Section 2 Amended by No. 52 of 1957, s. 2 ][Section 2 Amended by No. 46 of 1991, s. 4 and Sched. 2 ][Section 2 Amended by No. 34 of 1995, s. 4 ]
(1) In this Act –
adopted child –
(a) in the case of a child that is adopted in this State, means a child that is adopted by a person, or by a person and his spouse jointly, in accordance with the law relating to the adoption of children; or
(b) in the case of a child that is adopted elsewhere than in this State, means a child that is adopted by a person, or by a person and his spouse jointly, in accordance with the law of the State, Territory, or country where the adoption takes place, as in force at the date of the adoption;
child includes –
(a) an adopted child; and
(b) [Section 2 Subsection (1) amended by No. 31 of 2012, s. 21, Applied:01 May 2013] a stepchild; and
(c) [Section 2 Subsection (1) amended by No. 31 of 2012, s. 21, Applied:01 May 2013] a surrogate child;
Court means the Supreme Court;
[Section 2 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004]spouse includes the person with whom a person is, or was at the time of his or her death, in a significant relationship, within the meaning of the Relationships Act 2003 ;
[Section 2 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004]
The interpretive foundation is laid in s.2(1). "Child" expressly includes an adopted child (defined by reference to local or foreign adoption law at the date of adoption), a stepchild (a child of the deceased's spouse or a child whose natural parent was the spouse at the time of that parent's death), and a surrogate child (a person who is a child by operation of s.26(1) of the Surrogacy Act 2012 or corresponding interstate or foreign law and who has not ceased to be such a child). "Spouse" includes a person with whom the deceased was in a significant relationship within the meaning of the Relationships Act 2003 at the time of death. "Will" includes a codicil and certain nominations under friendly society rules. Subsection (2) contains a transitional savings provision clarifying that the expanded stepchild definition inserted in 2015 does not apply to estates of persons who died before its commencement.
Once an order is made, its content is prescribed by s.9(1): it must specify the amount and nature of the provision, how it is to be raised and paid, who bears the burden, and any conditions, restrictions or limitations. The order is to be noted on the probate or letters of administration (s.9(2)). Operationally, the provision takes effect as if it were a codicil executed immediately before death in testate estates, or as a modification of the Intestacy Act 2010 in intestate estates (s.9(3)). The Court may direct that provision for a spouse continues notwithstanding subsequent remarriage or entry into a significant relationship (s.9(4)).
Variation and rescission powers are conferred by s.9(5). On the application of an executor, administrator or beneficially interested person, the Court may rescind or alter an order by increasing, reducing or varying its terms. However, s.9(5A) prohibits disturbance of any lawful distribution made before the variation application. Notice must be served on all beneficiaries under the original order (s.9(6)), and the affected portion of the estate is thereafter held subject to the order (s.9(7)).
Where multiple claimants are involved, s.10 permits the creation of a class fund. An amount may be set aside and held on trust for two or more eligible persons. The trustee (usually the executor unless another is appointed) may apply income and capital for maintenance, education (including past expenses), advancement or benefit in such shares and manner as thought fit, even if only one beneficiary remains alive. Section 10(4) allows the Court to give directions for payment to a non-executor trustee and to exercise powers under s.47 of the Trustee Act 1898.
Incidence of the burden is addressed in s.10A. Unless otherwise ordered, payments fall rateably across the whole estate (or the part within the Court's authority). The Court may exonerate portions after hearing affected parties and may fix periodical or lump-sum commutations by beneficiaries, securing them as appropriate.
For estate duty purposes, s.10B deems any ordered provision to be a bequest by codicil (testate) or by a notional will executed immediately before death (intestate), thereby integrating the order into the duty calculation.
Procedurally, applications are made by summons in chambers in a prescribed form (s.4(1)) and must be served on the executor, administrator or, in intestacy, the administrator, plus any other persons directed by the Court (s.4(2)). The judge may adjourn into open Court (s.4(3)).
At hearing, the Court must inquire fully into the estate (s.6), summoning applicants and witnesses and requiring particulars from the personal representative. In deciding whether to grant relief and in fixing quantum, the Court must consider the net value of the estate after debts, testamentary and funeral expenses and liabilities (s.7(a)), and any independent means of the applicant whether derived from the deceased inter vivos or otherwise (s.7(b)).
Disentitling conduct is recognised in s.8(1): the Court may refuse relief if the applicant's character or conduct warrants it. Any order may impose conditions, restrictions or limitations to prevent alienation or charge of the benefit (s.8(2)).
The deceased's reasons for dispositions or omissions may be taken into account under s.8A(1), on whatever evidence the Court considers sufficient, whether admissible in ordinary proceedings or not. Where the will was made by the Tasmanian Civil and Administrative Tribunal or the Court under Part 3 of the Wills Act 2008, s.8A(1A) permits regard to the Tribunal's or Court's records and reasons. Subsection (2) confirms that s.8A does not restrict otherwise admissible evidence or matters.
Finally, strict time limits apply under s.11(1): the summons must be taken out not later than three months after grant of probate or letters of administration. However, the Court may extend time under s.11(2) after hearing affected persons, and may do so even after the initial period has expired (s.11(3)). Any extension application must be made before final distribution, and prior lawful distributions cannot be disturbed (s.11(4)).
Collectively these provisions create a comprehensive, discretionary jurisdiction that overlays both testate and intestate succession, prioritising adequate family maintenance while preserving personal representative certainty through time bars, rateable incidence and variation safeguards.
Who it affects
The Act directly affects three principal groups: eligible applicants, personal representatives, and other beneficiaries.
Eligible applicants are exhaustively listed in s.3A(a)–(e). First, the spouse of the deceased, defined in s.2(1) to include a person with whom the deceased was in a significant relationship under the Relationships Act 2003 at the date of death. Second, the children of the deceased. The term "child" in s.2(1) is deliberately expansive: it captures adopted children (whether adopted in Tasmania or elsewhere according to the law in force at adoption), stepchildren (children of the spouse or children whose natural parent was the spouse at the time of that parent's death, subject to the transitional rule in s.2(2) preserving the pre-2015 position for earlier deaths), and surrogate children (persons who remain children by virtue of s.26(1) of the Surrogacy Act 2012 or corresponding law). Third, parents of the deceased, but only where the deceased died without leaving a spouse or any children (s.3A(c)). Fourth, a person whose marriage to the deceased was dissolved or annulled and who, at the date of death, was receiving or entitled to receive maintenance (s.3A(d)). Fifth, a person whose significant relationship had ceased before death but who was likewise receiving or entitled to maintenance (s.3A(e)).
Personal representatives—executors, administrators with the will annexed, or administrators of intestate estates—are both respondents and potential applicants. They must be served with the summons (s.4(2)(a)), furnish full particulars of the estate (s.6(b)), and bear the practical burden of defending or compromising claims. Under s.3(5) they may themselves apply or seek directions on behalf of minors or incapacitated eligible persons. Once an order is made they must ensure it is noted on the probate or letters (s.9(2)), hold the affected portion subject to the order (s.9(7)), and may later apply to vary or rescind it (s.9(5)).
Other beneficiaries, whether residuary, specific or entitled on intestacy, are indirectly affected because any order reduces the net estate available to them. They may be directed to be served (s.4(2)(b)), are entitled to be heard on variation applications (s.9(6)), and may have portions of their interest exonerated or made subject to rateable contribution (ss.10A(2)–(3)). Where a class fund is created under s.10, the trustee (who may be a beneficiary or an independent appointee) holds and applies the fund for the nominated eligible persons to the exclusion of other beneficiaries.
The Act also touches the Tasmanian Civil and Administrative Tribunal and the Court in their wills-jurisdiction capacity. Where a will was made under Part 3 of the Wills Act 2008, s.8A(1A) permits the Family Maintenance Court to examine the Tribunal's or Court's records and reasons, thereby affecting the weight given to those dispositions.
Because the jurisdiction arises on death, it affects the estate planning expectations of any person domiciled or owning property in Tasmania. The broad definition of "spouse" and "child" means that persons in non-traditional family structures—de facto partners, step-families, surrogacy arrangements—must now factor potential claims into will drafting and lifetime transfers.
Key duties and rights
The Act creates few positive duties but confers significant rights and corresponding discretions.
Eligible persons possess the right to apply under s.3(1) for provision where they have been left without adequate maintenance and support. This right is personal but may be exercised by a litigation guardian or, for minors and incapacitated persons, by the personal representative (s.3(5)). The right is procedural in the sense that it is initiated by summons (s.4) and must generally be brought within three months of grant (s.11(1)), although extension is available (s.11(2)–(4)).
The Court holds the central discretionary rights: to order provision in whatever form it thinks proper (s.3(1)), to structure that provision as a lump sum, life interest in an existing or newly purchased dwelling (s.3(2)), to create class funds (s.10), to exonerate parts of the estate from incidence (s.10A(2)), to commute burdens (s.10A(3)), to vary or rescind earlier orders (s.9(5)), and to extend time (s.11(2)). In exercising these rights the Court must have regard to the net estate (s.7(a)), the applicant's independent means (s.7(b)), the deceased's ascertainable reasons (s.8A(1)), and any disentitling conduct (s.8(1)). It may accept otherwise inadmissible evidence of the deceased's reasons and, in the case of tribunal-made wills, the Tribunal's records (s.8A(1A)).
Personal representatives owe a duty to furnish full particulars (s.6(b)), to serve the summons on themselves and others as directed (s.4(2)), and to cause any order to be noted on the grant (s.9(2)). They hold the affected estate portion subject to the order (s.9(7)) and may themselves seek directions or make claims on behalf of protected persons (s.3(5)). They also possess the right to apply for variation or rescission (s.9(5)) and to be heard on exoneration applications (s.10A(2)).
Beneficiaries under the will or intestacy have the right to be heard on variation applications (s.9(6)) and on exoneration (s.10A(2)). They enjoy the protection of the final-distribution rule in s.11(4): lawful distributions made before an extension application cannot be disturbed.
Applicants and beneficiaries alike are subject to the Court's power to impose conditions restricting alienation of ordered benefits (s.8(2)) and to the rateable incidence rule in s.10A(1) unless the Court orders otherwise.
The Act preserves the right of the Court to treat one applicant's summons as brought on behalf of all eligible persons (s.3(4)), thereby giving the Court power to bind non-parties for the purposes of s.11 time limits.
Penalties and enforcement
The Act contains no criminal penalties. Enforcement is civil and occurs through the Supreme Court's inherent contempt powers and its statutory discretion to impose conditions.
If a personal representative fails to comply with an order, the affected beneficiary may seek enforcement by way of summons for directions or, ultimately, committal for contempt. The Court may, when making an order, impose "such conditions, restrictions, and limitations... as the Court or judge may think fit" (s.8(2)), including conditions preventing or defeating alienation or charge of the benefit. Breach of such a condition could ground an application to vary or rescind under s.9(5) or to enforce the trust created by s.9(7).
Where a class fund is established (s.10), the trustee's fiduciary duties are enforceable in the ordinary way; the trustee may be removed or replaced under the powers imported from s.47 of the Trustee Act 1898 (s.10(4)).
The time-limit provisions in s.11 are enforced by jurisdictional bar: the Court "shall have no jurisdiction" to hear an application brought out of time unless an extension is granted. The prohibition on disturbing prior distributions (s.11(4) and s.9(5A)) operates as a statutory defence to any later claim.
Costs are expressly within the Court's discretion (s.3(1)), providing a practical enforcement mechanism: adverse costs orders deter unmeritorious claims or defences.
Because the provision operates as a codicil or modification of intestacy (s.9(3)), it is enforceable against the personal representative in the same manner as any other testamentary disposition.
How it interacts with other laws
The Act is not standalone. Section 2(1) expressly incorporates definitions from three other statutes. "Significant relationship" is drawn from the Relationships Act 2003, expanding "spouse" beyond marriage. The concepts of stepchild and surrogate child cross-reference the Surrogacy Act 2012. Where a will was made under the Wills Act 2008 by the Tribunal or Court, s.8A(1A) permits reference to that Tribunal's or Court's records, creating a direct evidentiary bridge between the two statutes.
In intestate estates the order modifies the Intestacy Act 2010 (s.9(3)(b)). Estate duty apportionment under s.10B treats the provision as a notional bequest, integrating with whatever Commonwealth or State duties applied at the date of death.
The Trustee Act 1898 is imported for class-fund administration (s.10(4)), allowing the Court to exercise powers under s.47 of that Act. The Administration and Probate Act 1935 (though not expressly named) supplies the underlying framework of grants of probate and administration that trigger the three-month period in s.11(1).
The Act sits alongside the general law of family provision in other Australian jurisdictions but is distinct in its Tasmanian-specific expansions (for example, the surrogate-child definition). It does not displace the equitable doctrines of undue influence or unconscionable conduct in lifetime transfers, which remain available to disappointed family members outside the Act.
Section 2(2) contains an express non-retrospectivity clause preserving the pre-2015 stepchild definition for deaths before commencement, illustrating the Act's interaction with transitional provisions in amending legislation such as the Justice and Related Legislation (Miscellaneous Amendments) Act 2015.
Recent changes and why
The text records a series of amendments that have progressively modernised family concepts. The 2003 amendments (No. 45 of 2003) substituted the definition of "spouse" to include significant relationships under the newly enacted Relationships Act 2003, and adjusted s.3A and s.9(4) accordingly. These changes aligned the Act with contemporary recognition of de facto and same-sex relationships.
In 2012 (No. 31 of 2012, applied 1 May 2013) "child" was expanded to include stepchild and surrogate child, with corresponding definitions inserted into s.2(1). The 2015 amendments (No. 38 of 2015) further refined the stepchild definition and added s.2(2) to clarify non-application to pre-commencement deaths. These changes responded to the enactment of the Surrogacy Act 2012 and evolving family structures.
Section 8A(1A) was substituted in 2008 (No. 58 of 2008) and further amended in 2021 (No. 18 of 2021) to refer to the Tasmanian Civil and Administrative Tribunal, reflecting the replacement of earlier mental-health and guardianship bodies with a single tribunal that now makes wills under the Wills Act 2008. The amendment allows the Family Maintenance Court to consider the Tribunal's reasons, ensuring coherence between the two jurisdictions.
The 1995 amendments (No. 34 of 1995) had inserted subsections into s.2 that were later omitted in 2003, illustrating iterative refinement rather than linear expansion. The 1970 and 1974 amendments refined variation powers and removed spent subsections.
Each change broadened the pool of eligible persons and updated evidentiary and definitional cross-references to keep the Act congruent with contemporaneous family and succession law reforms. The legislative purpose discernible from the amendment notes is to avoid arbitrary exclusions based on outdated notions of "family" while preserving procedural certainty for personal representatives.
Court challenges and controversies
The provided text does not record specific court decisions; however, the structure of the Act itself has generated recurring legal issues. The central controversy is the breadth of the discretion in s.3(1). Because the Court must consider "all the circumstances" yet is guided only by the non-exhaustive factors in s.7, litigants frequently dispute the weight to be given to the deceased's testamentary freedom, the applicant's needs, and moral claims.
The disentitling-conduct provision (s.8(1)) has produced disputes over the threshold of misconduct required to bar relief entirely. Similarly, the admissibility and weight of the deceased's reasons under s.8A(1) has been contentious, particularly where those reasons are contained in informal statements or where s.8A(1A) tribunal records are said to be incomplete.
Time-limit litigation under s.11 is common. The interplay between the jurisdictional bar in s.11(1), the extension power in s.11(2), and the no-disturbance rule in s.11(4) requires careful sequencing of applications. Courts must decide whether an extension should be granted after final distribution has commenced, balancing the prejudice to beneficiaries against the applicant's delay.
The expansion of "child" to include adult stepchildren and surrogate children has raised questions about the duration of the obligation: does a 40-year-old stepchild who has had no relationship with the deceased for decades retain an equal claim? The savings provision in s.2(2) attempts to manage retrospectivity but creates two classes of stepchildren depending on date of death.
Class-fund orders under s.10 have generated controversy over trustee discretion: a trustee who applies the whole fund to one beneficiary to the exclusion of others may face breach-of-trust allegations, yet s.10(2)(a) expressly authorises such differential treatment.
The interaction between orders continuing after remarriage (s.9(4)) and the policy of encouraging self-support has also been debated. Overall, the Act's discretionary character, while flexible, produces uncertainty that encourages settlement but also generates satellite litigation on procedural and evidentiary points.
Gotchas
Most practitioners assume that only minor or financially dependent children can claim; in fact s.3A(b) and the inclusive definition of "child" in s.2(1) permit adult, self-supporting children, stepchildren and surrogate children to apply, provided they can demonstrate inadequate provision for their proper maintenance and support. The threshold is not destitution but what is "proper" in all the circumstances—a deliberately elastic concept.
The three-month time limit in s.11(1) runs from the date of grant, not death. Many solicitors diary the wrong trigger date. Moreover, an application for extension under s.11(2) must itself be filed before final distribution (s.11(4)); once the estate is fully distributed the jurisdiction to extend evaporates even if assets could theoretically be traced.
Section 8A(1) allows the Court to receive the deceased's reasons on any evidence it considers sufficient, including hearsay that would be inadmissible at common law. Conversely, a carefully drafted statutory declaration or solicitor's file note can carry decisive weight, yet many testators leave no record, exposing the estate to higher claims.
Class-fund orders under s.10 are under-used. They allow the Court to set aside a single sum whose income and capital can be applied differentially among multiple claimants for the rest of their lives, even if only one survives. The trustee's discretion is extraordinarily broad—s.10(2)(b) expressly permits exhaustion on the last survivor—yet the order binds the fund as a trust, exposing an unwary executor-trustee to fiduciary liability if the discretion is exercised capriciously.
The rateable incidence rule in s.10A(1) is default only. A well-drafted order can shift the entire burden onto residue, specific gifts, or even a particular beneficiary's share. Conversely, an unrepresented beneficiary may find their inheritance eroded without realising they could have sought exoneration under s.10A(2).
The 2015 stepchild definition (s.2(1)) contains two limbs; the second limb ("a child whose natural parent was the spouse of that person at the time of the natural parent's death") can capture a person who never lived with the deceased. Combined with the savings clause in s.2(2), estates of persons who died before 13 October 2015 are still assessed under the narrower pre-2015 meaning, creating a trap for practitioners who assume the current definition applies universally.
Finally, s.9(4) permits the Court to order that spousal provision continues despite remarriage or a new significant relationship. Many wills contain clauses attempting to terminate benefits on remarriage; such clauses are ineffective once a court order is made under this subsection.
How to comply
Compliance for testators begins at will-drafting. Obtain detailed instructions on all potential claimants under s.3A, including de facto partners, stepchildren, surrogate children and any former partners receiving maintenance. Record reasons for any omission or limited provision in a statutory declaration or solicitor's attendance note that can be tendered under s.8A(1). Consider inter vivos transfers or mutual wills where appropriate, but remember that such arrangements remain vulnerable to claim if they leave an eligible person without adequate provision.
For personal representatives, the first compliance step after grant is to identify every possible claimant and diarise the three-month period in s.11(1). Where a claim appears likely, consider seeking directions under s.3(5) or making an early without-prejudice offer. When served with a summons, immediately compile the estate particulars required by s.6(b) and obtain counsel's advice on net estate value (s.7(a)) and each claimant's independent means (s.7(b)).
If defending, assemble evidence of any disentitling conduct (s.8(1)) and any statements by the deceased explaining the will (s.8A). Where variation of an existing order is contemplated, ensure the application is brought before any further distributions that might engage s.9(5A).
For claimants, file the chamber summons in the exact form prescribed by s.4(1) and serve all necessary parties. If the limitation period has expired, file an extension application under s.11(2) before final distribution and serve all persons likely to be affected. Prepare detailed financial evidence demonstrating both need and the inadequacy of existing provision.
Where multiple eligible persons exist, consider inviting the Court to treat the application as brought on behalf of all (s.3(4)) so that one set of proceedings resolves everyone's position. If a class fund is likely, propose a suitable independent trustee at the hearing to avoid later conflict.
In all cases, remember that the Court's discretion is guided but not fettered. Compliance therefore requires a forensic focus on the s.7 factors, the deceased's reasons, and the practical forms of relief listed in s.3(2). Early, well-documented mediation remains the most reliable route to an order that minimises costs and avoids the uncertainty of a contested hearing.
[Section 2 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004]
[Section 2 Subsection (1) amended by No. 38 of 2015, s. 55, Applied:13 Oct 2015]
[Section 2 Subsection (1) amended by No. 38 of 2015, s. 55, Applied:13 Oct 2015]stepchild means, in relation to a person –
(a) a child of that person's spouse; and
(b) a child whose natural parent was the spouse of that person at the time of the natural parent's death;
[Section 2 Subsection (1) amended by No. 31 of 2012, s. 21, Applied:01 May 2013]surrogate child means, in relation to another person, a person (whether or not the person has attained the age of 18 years) –
(a) who is a child of the other person by virtue of the operation of section 26(1) of the Surrogacy Act 2012 , or a law, of another State or a Territory or a foreign country, that corresponds to that Act; and
(b) who has not ceased to be a child of the other person under that Act or law;
[Section 2 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004][Section 2 Subsection (1) amended by No. 66 of 1997, Sched. 1, Applied:01 Feb 1998]
[Section 2 Subsection (1) amended by No. 66 of 1997, Sched. 1, Applied:01 Feb 1998]will includes a codicil and a nomination made in accordance with the rules of a society within the meaning of the Friendly Societies (Tasmania) Code.
(2) [Section 2 Subsection (2) substituted by No. 38 of 2015, s. 55, Applied:13 Oct 2015] For the avoidance of doubt, the definition of stepchild, as substituted by the Justice and Related Legislation (Miscellaneous Amendments) Act 2015, does not apply in respect of a claim against the estate of a person whose death occurred before the commencement of that Act.
(3) [Section 2 Subsection (3) inserted by No. 34 of 1995, s. 4 ][Section 2 Subsection (3) omitted by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] . . . . . . . .
(4) [Section 2 Subsection (4) inserted by No. 34 of 1995, s. 4 ][Section 2 Subsection (4) omitted by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] . . . . . . . .
(5) [Section 2 Subsection (5) inserted by No. 34 of 1995, s. 4 ][Section 2 Subsection (5) omitted by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] . . . . . . . .
3 Claims for maintenance against estate of deceased person
3 Claims for maintenance against estate of deceased person
[Section 3 Substituted by No. 52 of 1957, s. 3 ]
(1) If a person dies, whether testate or intestate, and in terms of his will or as a result of his intestacy any person by whom or on whose behalf application for provision out of his estate may be made under this Act is left without adequate provision for his proper maintenance and support thereafter, the Court or a judge may, in its or his discretion, on application made by or on behalf of the last-mentioned person, order that such provision as the Court or judge, having regard to all the circumstances of the case, thinks proper shall be made out of the estate of the deceased person for all or any of the persons by whom or on whose behalf such an application may be made, and may make such other order in the matter, including an order as to costs, as the Court or judge thinks fit.
(2) In addition to, and without prejudice to, any other powers conferred on the Court or a judge by subsection (1) of this section, the Court or judge may order that the provision to be made out of the estate of the deceased person shall consist of –
(a) the payment to the applicant of a lump sum;
(b) a life interest or any lesser interest in any dwelling-house belonging to that estate; or
(c) a life interest or any lesser interest in a dwelling-house that the Court or judge may order to be purchased for occupation by the applicant –
and may, in any case, order that that provision shall be made upon and subject to such terms and conditions, if any, as the Court or judge may think desirable in the circumstances of the case.
(3) For the purposes of paragraph (c) of subsection (2) of this section, the Court or judge may, notwithstanding any provision or direction to the contrary in the will of a deceased person, order that any moneys belonging to or forming part of the estate of that person shall be expended in the purchase of the fee simple of any real property.
(4) Where an application under subsection (1) of this section is made by or on behalf of any person, the Court or a judge may order that it shall be regarded as an application on behalf of all persons who are entitled under this Act to make such an application, and if the Court or a judge so orders, the application shall, for the purposes of section eleven , be treated as an application made by all of those persons.
(5) The executor or administrator of the estate of a deceased person, on behalf of a person who is entitled to make an application under subsection (1) of this section and who is not of full age or mental capacity, may –
(a) make an application under that subsection; or
(b) apply to the Court or a judge for directions as to whether he should make an application under that subsection –
and, in the latter case, the Court or judge may treat the application for directions as an application under that subsection on behalf of that person.
3A Persons entitled to claim under this Act
3A Persons entitled to claim under this Act
*[Section 3A Inserted by No. 52 of 1957, s. 3 ]**[Section 3A Amended by No. 34 of 1995, s. 5 ]*An application under subsection (1) of section three for provision out of the estate of a deceased person may be made by or on behalf of all or any of the following persons, that is to say:
(a) [Section 3A Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] The spouse of the deceased person;
(b) The children of the deceased person;
(c) [Section 3A Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] The parents of the deceased person, if the deceased person dies without leaving a spouse or any children;
(d) A person whose marriage to the deceased person has been dissolved or annulled and who at the date of the death of the deceased person was receiving or entitled to receive maintenance from the deceased person whether pursuant to an order of a court, or to an agreement or otherwise; and
(e) [Section 3A Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] A person whose significant relationship, within the meaning of the Relationships Act 2003 , with the deceased person had ceased before the date of the death of the deceased person and who was receiving or entitled to receive maintenance from the deceased person whether pursuant to an order of a court or to an agreement or otherwise.
4 Application by summons in chambers
4 Application by summons in chambers
(1) *[Section 4 Subsection (1) amended by No. 52 of 1957, s. 4 ]*Every such application shall be made by summons in chambers, entitled "In the matter of the Testator's Family Maintenance Act 1912 , and in the matter of the estate of _______ deceased".
(2) *[Section 4 Subsection (2) substituted by No. 52 of 1957, s. 4 ]*A summons under this section shall be served on –
(a) the executor of the will of the deceased person or the person to whom letters of administration with the will annexed have been granted, or, in the case of an intestate estate, the administrator of that estate; and
(b) such other persons as the Court or a judge may direct to be served therewith.
(3) The judge may, if he thinks fit, adjourn such summons into Court.
5.
[Section 5 Repealed by No. 52 of 1957, s. 5 ]
6 Powers of Court or judge
6 Powers of Court or judge
*[Section 6 Amended by No. 52 of 1957, s. 9 and Sched. 1 ]*At the hearing of such application the Court or judge shall inquire fully into the estate of the deceased person, and for that purpose may –
(a) summon and examine the persons who are entitled to make an application under this Act, or such of them as the Court or judge may think it desirable to examine, and also such witnesses as may be necessary; and
(b) require the executor or person applying for probate or letters of administration to furnish full particulars of the estate.
7 Court or judge to consider net estate and means of widow or child
7 Court or judge to consider net estate and means of widow or child
*[Section 7 Amended by 25 Geo. V No. 78 ]**[Section 7 Amended by No. 52 of 1957, s. 9 and Sched. 1 ]*In granting or refusing any such application, and in fixing the amount of the provision to be made under this Act for any person who is entitled to make an application under subsection (1) of section three, the Court or judge shall have regard, inter alia, to –
(a) the net value only of the estate of the deceased person, as ascertained by deducting from the gross value thereof all debts, testamentary and funeral expenses, and all other lawful liabilities to which the said estate is subject; and
(b) whether any such person is entitled to independent means, whether secured by any covenant, settlement, transfer, or other provision made by the deceased person during his life or derived from any other source whatsoever.
8 Cases in which Court or judge may refuse application
8 Cases in which Court or judge may refuse application
(1) The Court or judge may refuse any such application if the character or conduct of any person by or on behalf of whom the application is made is such as in the opinion of the Court or judge should disentitle him or her to the benefit of any provision under this Act.
(2) The Court or judge in making any order under this Act may impose such conditions, restrictions, and limitations, whether to prevent, restrict, or defeat any alienation or charge of or upon the benefit of any provision made under such order or otherwise, as the Court or judge may think fit.
(3) [Section 8 Subsection (3) added by 25 Geo. V No. 78 ][Section 8 Subsection (3) amended by No. 52 of 1957, s. 9 and Sched. ][Section 8 Subsection (3) omitted by No. 36 of 1974, s. 12 and Sched. 1 ]. . . . . . . .
8A Evidence as to deceased's reasons for dispositions
8A Evidence as to deceased's reasons for dispositions
[Section 8A Inserted by No. 52 of 1957, s. 6 ]
(1) On the hearing of an application under subsection (1) of section three, the Court or judge may have regard to the deceased person's reasons, so far as they are ascertainable, for making the dispositions made by his will, or for not making any provision or further provision, as the case may be, for any person, and the Court or judge may accept such evidence of those reasons as it or he considers sufficient, whether that evidence would otherwise be admissible in a court of law or not.
(1A) [Section 8A Subsection (1A) amended by No. 18 of 2021, s. 336, Applied:05 Nov 2021][Section 8A Subsection (1A) amended by No. 18 of 2021, s. 336, Applied:05 Nov 2021][Section 8A Subsection (1A) amended by No. 18 of 2021, s. 336, Applied:05 Nov 2021][Section 8A Subsection (1A) inserted by No. 68 of 1995, s. 13, Applied:01 Sep 1997][Section 8A Subsection (1A) substituted by No. 58 of 2008, Sched. 1, Applied:01 Mar 2009] Where an application under section 3(1) relates to a will made under Part 3 of the Wills Act 2008 by the Tasmanian Civil and Administrative Tribunal or the Court, the Court or judge may have regard to the records of the Tribunal or Court relating to the person for whom the will was made and the reasons given by the Tribunal or Court for making an order authorising the making or alteration of a will in specific terms.
(2) Nothing in this section shall be construed as restricting the evidence that is admissible, or the matters that may be taken into account, on the hearin
This is an opening excerpt, not the complete document.