You may have not heard the term ‘defending a will’ until it is a responsibility you are required to do as an executor of an estate.

What does defending a Will in NSW mean? 

Defending a will in NSW refers to doing all that is required to uphold the terms of a deceased’s person’s will. There are many circumstances where a person may find themselves defending a will, and that includes where a person is making a claim for provision or further provision out of an estate or where a person claims that the deceased’s last will is invalid because:  

  • The deceased was unable to give instructions or sign their last will to the required mental capacity. Their will could potentially be revoked if proven that they lacked the necessary capacity to complete the legal requirements associated with formalising their last will.  
  • The deceased did not understand the contents of their will that had been approved. 
  • The deceased did not sign their will, fraud, forgery, or suspicious circumstances were involved. 

Who is responsible for defending a Will, and who else is involved?  

When nominated for the role of executor, the executor will be responsible for certain duties, requirements and commitments regarding upholding the terms of the deceased’s will. This includes ‘defending’ the will should it be contested or challenged.

Typically, as it is the role of an executor to uphold the terms of a deceased’s will, the executor and the claimant will be those involved who are involved in the litigation aspect, however, the executor must also ensure that they are acting in the best interest of the estate and therefore the beneficiaries of the estate. This includes ensuring the beneficiaries are “heard”, particularly in family provision claims.  There are circumstances where a beneficiary may engage their own legal representation, and indeed are entitled to, should they feel the need.

Is time a factor when defending a Will? 

There is no time limit relative to upholding the terms of a will where a person is trying to claim the will is invalid. Typically, a claimant should look at commencing proceedings prior to Probate being granted, however that may not always be the case. 

As for defending family provision claims, if a claim is commenced outside the prescribed time frame of 12 months from the date of death of the deceased, there is a risk that the claimant’s claim could be dismissed by the Court. However, this is dependent on many factors, particularly if the claimant knew of their rights to make a claim and whether there would be any prejudice to the beneficiaries if the court was to allow an extension of time. Each case is considered on an individual basis. 

How do I begin to defend a Will, and do I need legal representation?  

This process can be confusing and overwhelming for any executor not familiar with legal proceedings. Typically, a person who is considering making a claim against an estate for provision will inform the executor, either personally or via their legal representative, that they intend to commence proceedings against the estate for provision. Proceedings will thereafter be commenced whereby the claimant will file a Summons in the Supreme Court nominating the executor as a defendant in the proceedings. That Summons will then be served on the executor and the executor will have need to notify the court they intend on defending the proceedings.  

As to defending a claim where a person disputes the validity of a will, in the event probate has not been granted, the claimant will typically file a Caveat to put a “stop” on the court issuing probate. The executor will have need to then take steps to remove the Caveat so Probate can proceed. 

When on notice of a claim (or receipt of a Summons or Caveat) it is important for the executor to seek legal advice to ensure the correct process is followed in order to protect the executor from any cost claims in their personal capacity.   

Our team has extensive experience working in the area of Contested Estates and offer a free first assessment. Reach out to our friendly team today to discuss your options in seeking support as an executor defending a will.