Defending a Will

When someone challenges the validity of a Will or applies to the Court for a Family Provisions 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 to defend the challenge. The executor may be required to provide evidence that the Will is valid, and that the testator knew what he or she had written and signed the Will. For example, if the testamentary capacity of the testator is questioned, then the executors may need to provide medical documentation that the testator had mental capacity when he or she signed the Will.  If the executor needs to defend an application by a family member or named beneficiary under a family provision claim, they will need to provide evidence on the size of the estate or the relationship between the deceased and the claimant.

When a Will is challenged or contested the executor needs to weigh up the legal costs of defending a Will based on the size of the estate. For example, a family provision claim for the maintenance, education and advancement in life 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 outside of court.

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 (also known as cum testamento annexo).

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 1898also allows the appointment of the NSW Trustee instead of the named executor, who once again will be responsible for defending a Will.  The NSW Trustee will charge for their services.

Please note that the executors have the right to renounce their executorship if they so choose.

In most cases the legal cost of defending a Will comes out of the estate. The executor is rarely 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.