When someone challenges the validity of a Will or applies to the Court for a family provision claim, it is up to the named executors to defend the Will. It is the role of the executors to ensure the wishes of the deceased are upheld.
If the validity of a Will is challenged, then the executor needs to file a defence. The executor may be required to provide evidence that the Will is valid, and that the testator knew and approved of the contents of the Will. If the capacity of the testator is questioned, then the executors may need to provide evidence that the testator had the requisite mental capacity to give instructions to the person who prepared the Will.
When a Will is contested, or a family provision claim is lodged then the executor needs to weigh up the legal costs of defending the Estate. For example, agreeing to a settlement of a family provision claim may be comparatively small in comparison to the size of the estate and the legal costs associated with defending the application. In this situation, the executor may wish to settle any claim on the estate before the Court hears the matter.
In most cases it is the named executor of the Will who is responsible for defending a Will. However, there may be cases where the executor has passed away, cannot be reached, or refuses to act on his or her role as an executor or have renounced Probate of the Will. In this case the named substitute executor in the Will can take over the role. If there is no named substitute executor willing to apply for Probate, then a major beneficiary or creditor may apply to the Court for Letters of Administration with the Will annexed.
If the Court appoints someone to administer the Will, it will be their responsibility to defend the Will against any challenge or contest. Section 75A of the Probate and Administration Act 1898 also allows the appointment of the NSW Trustee & Guardian who then will be responsible for defending a Will. The NSW Trustee & Guardian will charge for their services.
Please note that the executors have the right to renounce their right to apply for Probate if they so choose.
In most cases the legal cost of defending a Will comes out of the estate. The executor is rarely personally liable for any legal costs, expect in cases where the Court consider the executor to have been unreasonable with legal proceedings to defend the Will. In some cases, the court may have capped the total legal costs that can be taken out of the estate for both the defendant and the claimant. We can provide an upfront estimate of costs to defend a Will.
If you are required to defend a Will, contact us for a free thirty-minute consultation with a deceased estate lawyer in Sydney.
Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.