DEFENDING A WILL
Are you concerned that someone may make a claim against the estate? Or have legal proceedings being commenced against you as an executor of a Will?
If you’ve been appointed executor, administrator, or are a beneficiary involved in a dispute, you may be responsible for defending the estate. We help you protect the deceased’s wishes while managing risk, cost, and conflict, with clear advice on how to respond at every stage of the process. August & Claire Lawyers specialises in estate litigation matters with years of experience in complex estate disputes.
Below we explain what it means to defend a Will, the types of claims that may arise, and what you can expect if proceedings are commenced.
WHO IS RESPONSIBLE FOR DEFENDING A WILL?
It is the role of the legal personal representative of the estate, usually the executor or the administrator to respond to and defend any claims made against the estate.
Defending a will does not simply mean rejecting every claim. It involves:
– Upholding the terms of the will where appropriate
– Properly considering any legitimate claims made against the estate
– Acting in the best interests of the estate and all beneficiaries
In practice, this often requires a careful balance between defending the estate and considering reasonable settlement options to avoid unnecessary litigation.
We assist:
– Executors responding to claims
– Beneficiaries whose inheritance is being challenged
– Families seeking to uphold a loved one’s wishes
WHAT TYPE OF CLAIMS CAN BE MADE AGAINST THE ESTATE?
There are various claims that may be brought against an estate including but not limited to:
– Contesting a will (family provision claims)
– Challenging a will (validity disputes)
Understanding the difference is critical, as each involves a different legal test and strategy.
CONTESTING A WILL (FAMILY PROVISION CLAIMS)
A family provision claim is where an eligible person asks the Court for further provision, or a greater share from the estate.
Importantly, these claims do not argue that the Will is invalid. Instead, they assert that the Will does not make adequate provision for the person bringing the claim.
Eligible claimants may include spouses, children, dependents, and in some cases others who had a close personal relationship with the deceased.
In addition to the family provision claims, other equitable claims may also arise, including:
– Promissory Estoppel: Where a person relied on a promise made by the deceased to their detriment.
– Constructive Trust Claims: Where a person asserts an equitable interest in property due to contributions or circumstances.
CHALLENGING A WILL (VALIDITY DISPUTES)
A Will challenge involves disputing the validity of the Will itself. In these cases, the argument is not about the distribution of the estate, but whether the document should be treated as legally valid.
Common grounds include:
- The deceased lacked testamentary capacity at the time the Will was signed
- The deceased did not understand or approve the contents of the Will (knowledge and approval)
- The Will was affected by fraud or forgery
- The deceased was subject to undue influence or coercion
THE PROCESS OF DEFENDING A WILL IN NSW
If a claim is made, the process is generally structured and follows a number of defined stages.
1. Notice of a Claim
In most cases, the executor or administrator will first be placed on notice of a potential claim before any court proceedings are commenced.
This stage is important as it allows the parties to:
– Understand the nature of the claim
– Obtain legal advice
– Explore the possibility of early resolution
Early advice is essential to assess the strength of the claim and determine the most appropriate strategy moving forward.
2. Commencement of Proceedings
If the matter cannot be resolved, the claimant may commence proceedings in the Supreme Court of New South Wales.
This is typically done by filling either:
– A Summons (commonly used in family provision claims), or
– A Statement of Claim (often used in disputes)
The executor or administrator is named as the defendant, as they are responsible for defending the estate.
3. Responding to the Claim
To participate in the proceedings, the defendant must formally respond by filing:
– An Appearance (for a Summons)
– A Defence (for a Statement of Claim)
Proper and timely response is essential, as it ensures the estate’s position is properly put before the Court.
4. Evidence and Case Management
The Court will then set a timetable for the progression of the matter, including the filing and exchange of evidence.
This may involve affidavits from:
– The executor or administrator
– Beneficiaries
– Other relevant witnesses
5. Mediation (compulsory in NSW)
Most Will disputes are required to attend mediation before proceeding to a final hearing.
Mediation is a structured settlement process designed to resolve the dispute without a final Court decision. It is:
– Mandatory in most matters
– Often successful in resolving disputes
– Generally more cost-effective and less stressful than litigation
4. Hearing and Judgement
If the matter does not resolve at mediation, it will proceed to a final hearing.
At the hearing, each party presents their case, evidence is tested, and the Court determines the outcome.
Even after mediation, settlement can still be reached prior to hearing. However, if the matter proceeds to judgement, the Court will deliver a final decision, subject only to limited appeal rights.
DO I HAVE TO DEFEND A WILL?
If you are an executor or administrator, you generally have a duty to respond to claims made against the estate. However, this does not necessarily mean you must actively oppose every claim.
In many cases, your role is to:
-Remain neutral
-Ensure the estate is properly represented
-Assist the Court in determining a fair outcome
The appropriate approach will depend on the type of claim, the strength of the evidence and your obligations as legal personal representative.
WHAT ARE THE COSTS OF DEFENDING A WILL?
The cost of defending a will in New South Wales will depend on how early the matter is resolved and how far it progresses through the legal process.
Matters resolved early – before or shortly after proceedings are commenced, are generally significantly less costly than those that proceed through mediation or to a final hearing.
In many cases, legal costs associated with defending a will are paid from the estate, provided the executor or administrator has acted appropriately in managing the claim. However, this is ultimately subject to the Court’s discretion.
Claimants will often also seek orders for their legal costs to be paid from the estate. The outcome will typically depend on negotiations between the parties and what occurs at mediation.
Where a matter proceeds to hearing, and a claimant is successful, the Court may order that some or all their legal costs be paid from the estate.
Ultimately, the Court has broad discretion when determining costs and will consider the conduct of the parties, the merits of the claim, and whether the dispute could have been resolved earlier.