If you have been named as the executor of an estate that is being contested, you may be feeling a little overwhelmed. Don't worry – we are here to help. In this post, we will explain what you need to know about defending a contested will. Keep reading to learn more!
Who is involved when someone does contest a Will?
The most common parties to a claim are:
- The applicant – the person bringing the claim;
- The executor – the person defending or responding to the claim;
- The beneficiaries – anyone entitled under the terms of the will.
Duties of Executor
If you have been named in a Will or appointed by the court to be the executor of a Will or the administrator of an estate, you may have certain duties to defend the estate or attempt to uphold the terms of the Will where a challenge has been made. There are a number of duties that relate to challenges, such as providing relevant information on request of a court.
Other duties required of an Executor are:
- Protecting, collecting and gathering the real and personal assets of the deceased’s estate
- Paying all estate debts and discharging liabilities
- Notifying all interested parties including beneficiaries of the Will
- Providing to the Supreme Court an inventory of the assets comprising the estate
- Preparing and submitting the total costs involved in administration of the estate to the Supreme Court
- Applying for the required Grant of Probate or, if applicable, Letters of Administration from the Supreme Court
- Finalising income tax returns of the deceased estate
- Taking necessary steps to distribute the estate pursuant to the deceased’s Will
On top of these duties, Executors often need expert legal advice whenever they are confronted by another person who intends to make a claim upon the estate of a deceased person.
The difference between challenging a will and contesting a will
Contesting a Will and challenging a will are two very different things. Contesting a Will is when you have been left out of Will, or feel you have been treated unfairly by the Testator within their Will. Therefore you launch a family provision claim.
To challenge a Will is to dispute a Will, or to say that the Will itself should be struck out. These types of cases usually arise when the person who made the Will was suffering from a mentally degenerating disease, or they were put under pressure to change their Will.
Are there time limits to contest a will in Australia?
The time limit to challenge a Will in Australia is different depending on the state you live.
- NSW and ACT you have 12 months from the date of death to lodge a claim in court.
- Victoria you have six months from the date of the grant of probate to lodge a claim in court.
- Queensland you have six months from the date of death to notify the executor of a claim and another three months to lodge the claim in court.
- Northern Territory you have 12 months from the date of the grant of probate to lodge the claim;
- Western Australia you have six months from the date of the grant of probate to lodge a claim in court.
- Tasmania you have just three months to file a claim in court from the date of the grant of probate.
Defending A Contested Will
An executor is always entitled to defend an application by a beneficiary to contest a Will.
The executor should not expend disproportionate resources to defend such a challenge. For example, if an applicant is seeking a small sum by way of additional provision then (from a purely commercial perspective) it may not be worth mounting an expensive defence to such a claim.
However, if an executor needs to defend a contest by a beneficiary or a family member, they need to file evidence of the size of the estate and any observations about the nature of the relationship between the deceased person and the person contesting the Will. There will ordinarily be a mediation held after the evidence is exchanged, and the vast majority of such claims are settled at a mediation or shortly after.
Defending A Will Challenge
If someone challenges the validity of a Will, the executor will need to file a defence to defending the challenge. The defence will set out the grounds upon which the challenge is being defended. In order to defend a Will challenge, the executor needs to file evidence about the mental capacity of the person who made the Will. This will ordinarily be in the form of medical records and/or reports from treating doctors and psychiatrists.
If the person defending the Will challenge has concerns about their ability to access such information, they can file an application with the court for an order that the medical records be disclosed.
The executor also needs to file evidence about any pressure that may have been exerted on the person who made the Will. This will ordinarily be in the form of witness statements from people who were present when the Will was being made, or who saw the person making the
It is also important for the executor to be aware that if they lose a Will challenge, they may be personally liable for any losses incurred by the estate as a result of the challenge.
How long does a will defence case take?
The time it takes to defend a will can vary depending on the issues in dispute and the court in which the proceedings are being heard. Generally, defending a will can take anywhere from several months to a couple of years. Defending a will can be a complex and time-consuming process, but it is important to remember that you are not alone. There are many experienced solicitors who can help you through the process and ensure that your interests are protected.
How much will defending a will cost?
The cost of defending a will can vary depending on the complexity of the case and the number of days it takes to reach a decision. Generally, you can expect to pay several thousand dollars in legal fees. However, if you are successful in defending the will, you may be able to recover some or all of your costs from the estate.
What happens after defending a will?
Once you have defended a will, the court will issue a decision. If the court finds in your favour, the will is considered valid and can be executed. If the court finds against you, the will is invalidated and the estate is distributed according to the laws of intestacy.
Why is it better to resolve a contested will case out of court?
There are a number of reasons why it is better to resolve a contested will case out of court. Firstly, it can be a cheaper and faster way to reach a resolution. Secondly, it can help to preserve relationships between family members and beneficiaries. And finally, it can avoid the stress and uncertainty of going to court.
How does mediation of a contest will work?
The process of mediation typically involves the parties meeting with a neutral third party, who will help them to reach an agreement. Mediation can be a useful way to resolve a contested will case, as it allows the parties to come to a resolution without going to court.
What should you do if you are an executor of a Will that is being contested?
If you are an executor defending a contested will, you must seek legal advice as soon as you have been put on notice that a claim or legal proceedings been commenced. An executor should consider the following when choosing their legal representation:
- The lawyer or firm is well-versed in the area of Succession Law; and
- The lawyer or firm has knowledge and experience in both defending and bringing claims against the estate so they can identify the strengths and weaknesses of each claim.
How State Law Groups expert team of lawyers can help
Defending a contested will is not something that should be taken lightly. It is a complex process that can take months or even years to resolve. If you are an executor defending a will, you should seek legal advice as soon as possible to ensure that your interests are protected. The team at State Law Groups has experience in both defending and bringing claims against estates, so we can help you identify the strengths and weaknesses of each claim. We can also help you navigate the complex process of defending a will, so you can focus on what is important – executor your duties to the best of your ability. Contact us today to learn more about how we can help you.
