DEFENDING A WILL
Are you concerned that someone may make a claim against the estate?
Or have legal proceedings being commenced against you as executor of a will?
Below we detail all you need to know about defending a will and what you may expect.
WHO CAN DEFEND A WILL?
It is the role of the legal personal representative of the estate, that is the executor or the administration, to defend any claims made against the estate.
Defending a claim not only means upholding the terms of the deceased’s will, but also compromising on any reasonable claims made against the estate. Ultimately, the executor or administrator must act in the best interest of the estate and the beneficiaries.
WHAT TYPE OF CLAIMS CAN BE MADE AGAINST THE ESTATE?
Generally speaking, there are two types of claims as follows:
Contesting a will and Challenging a will.
CONTESTING A WILL
Contesting a will, otherwise referred to as a family provision claim, is a claim made by an eligible person for provision or further provision out of the deceased’s estate. You may find out more information about contesting a will here.
There may be other circumstances where people contest a will including but not limited to promissory estoppel or constructive trust claim.
A promissory estoppel may arise when a person makes a promise to another person, and that other person relies on this promise to their own detriment.
A constructive trust is an equitable remedy that may be granted by a Court where one person received a benefit to the detriment of another person.
CHALLENGING A WILL
Where a person challenges a will, they are challenging the will on the basis the will is invalid for one or more of the following reasons:
- The deceased lacked capacity at the time he or she signed their will;
- The deceased did not understand the effect or approved of the contents of their will, otherwise known as “knowledge and approval;
- Forgery or fraud is involved;
- Undue influence;
DEFENDING A WILL CONTEST OR WILL CHALLENGE
Generally, an executor or administrator will first be put on notice of an impending claim. It is not usually the case that proceedings will be commenced without first having notice of such a claim. The reason for this is so the parties may have the opportunity to explore the possibility of settlement prior to commencement of court proceedings.
When an executor or administrator is put on notice of a claim, it is important to obtain details of the claim so you may be legally advised on how to deal with same.
If agreement cannot be reached as to the claim, then the claimant, also more commonly referred to as the plaintiff, will file a Summons or a Statement of Claim with the Supreme Court of New South Wales. The executor or administrator will be nominated as the defendant to those proceedings.
Once the plaintiff has commenced proceedings, the matter will be proceed through the court process.
For the defendant to appear in the proceedings, the defendant must file an Appearance to the Summons or Defence to the Statement of Claim.
The legal representatives of the parties will then appear before the court for the purpose of obtaining a timetable for the service of evidence and general “running” of the matter.
The defendant will have the opportunity to file their evidence, including evidence of any beneficiary as the case may be, during the proceedings and once all evidence is filed, the parties will attend a mediation in an attempt to resolve the proceedings without the intervention of the court. Mediation is compulsory and cannot be stood aside.
If agreement is not reached at mediation, a hearing date will be appointed for the court to determine the outcome.
Although agreement may not be reached at mediation, the parties may still reach a settlement prior to hearing.
The proceedings are finalised when the judge hands down his or her judgement unless it can be found they erred in their decision resulting in an appeal.
WHAT ARE THE COSTS OF DEFENDING A WILL?
Legal fees are very dependent on what stage the claim finalises.
If agreement is reached out of court, the fees will be much less then if the claim finalises at say mediation.
In most cases, any legal fees associated with defending any claims against the estate are paid from the estate, unless otherwise ordered by the Court.
A plaintiff will generally also claim their costs be paid out of the estate and this will depend on what agreement is reached at mediation.
If agreement is not reached at mediation or thereafter, and the matter is determined by a judge at a hearing, if the plaintiff is found to be successful in their claim, usually the court will make an order that some, or in some cases most, of the plaintiff’s costs be paid out of the estate.
The court has complete discretion when it comes to costs.