Defending a Will
We regularly assist executors to defend contested Will claims or challenges to the validity of a Will.
An executor is in the difficult position of having to defend the claim to protect the beneficiaries and the wishes of the deceased while also thinking about the litigation risks. This can be a difficult balance to strike.
We understand how important it is for the executor to feel safe in their decisions. We will always ensure that, as an executor, you will not be criticised by beneficiaries or the court.
If have any questions about Defending a Will in any Australian state or territory then contact us.
Who can defend a Will?
The obligation to defend a Will lies with the executor or administrator.
Other beneficiaries of the Will or Estate will not ordinarily be involved in the defence of the claim. However, in certain circumstances it may be possible for a defendant to be one of the main beneficiaries of the Will or the estate.
Defending a Contested Will
An executor is always entitled to defend an application by a beneficiary to contest a Will.
The executor should not expend disproportionate resources to defend such a challenge. For example, if an applicant is seeking a small sum by way of additional provision then (from a purely commercial perspective) it may not be worth mounting an expensive defence to such a claim.
However, if an executor needs to defend a contest by a beneficiary or a family member, they need to file evidence of the size of the estate and any observations about the nature of the relationship between the deceased person and the person contesting the Will. There will ordinarily be a mediation held after the evidence is exchanged, and the vast majority of such claims are settled at a mediation or shortly after.
Defending a Will Challenge
You can defend, as executor or administrator, a Will if you have reason to believe that the Will is valid.
An executor should always consider whether or not it is appropriate to expend resources to defend the claim. This is most easily done by seeking the consent of the beneficiaries.
If you are unable to get that consent, for example because a beneficiary is a minor, then it is always possible to seek advice of the Supreme Court as to whether it is appropriate in all the circumstances for a defence to be mounted against a challenge.
Taking this step will ensure that the executor or administrator’s legal costs will be covered by the estate.
If a Caveat has been lodged against a probate in circumstances that you consider it inappropriate, it is possible to have that Caveat removed.
A Caveat will be removed where there is either no doubt that probate should be granted or the person that field the Caveat does not have an interest in the estate. If a Caveat is removed you can expect that the caveator will be ordered to pay the costs of the person seeking to remove the Caveat.
Costs of defending a Will
Provided the defence of the Will was an appropriate step to take, taking on board all relevant legal and other professional advice, then the executor can expect that all their costs of the defence of the Will will be met by the estate.
However, if a beneficiary is defending the Will they should seek agreement from the other beneficiaries first that their costs will be met by the estate.
As always, costs are at the discretion of the Court and it is up to the Court to decide whether or not to award costs in any particular case.