Defending a Will in NSW?

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    Usually, if you are appointed as an executor of a Will, you’ll administer the last wishes of the Testator without incident. The estate will be distributed to beneficiaries as per the wishes of the deceased, and the family will unite to overcome their grief and live in harmony.

    Unfortunately, the reality is sometimes very different.

    For a variety of reasons, some executors will find themselves defending a Will. These reasons include challenging the validity of the Will, a family provision claim being made, or a claim that the Testator has failed to deliver on a promise made during their lifetime. In all of these circumstances the responsibilities of an executor can be extensive and complex.

    WillClaim lawyers can help you understand your role as an executor and assist you to defend the Will.

    There are some important things that you need to consider if you find yourself defending a Will against a claim. As an executor of a Will, you have an obligation to uphold the provisions of the Will. But in performing your duty, you need to be reasonable, which involves seeking to negotiate and compromise where the circumstances require.

    For example, if the size of the estate is relatively small and there is a strong claim, it may be necessary to compromise instead of proceeding to a hearing that may cause the estate to incur sizeable legal costs.

    Still have questions?

    The Role of an Executor in Defending a Will

    When someone challenges the validity of a Will in NSW, the role of the executor will depend on the type of claim or challenge.

    If an executor is defending the Will against a family provision claim, the executor is required to provide details of the assets, liabilities, and net worth of the estate. The executor may also be responsible for obtaining details about the material and financial circumstances of the beneficiaries named under the Will, and evidence to refute the claims made by the claimant.

    If an executor is defending a claim to a Will’s validity, the executor may have to apply for a grant of probate of the Will in solemn form. The court then determines – on evidence – whether the Will represents the deceased’s last testamentary intentions. The pronouncement of a Will in solemn form means its provisions cannot be subject to later contest except for fraud or the discovery of a later Will.

    If an executor is defending a Will against a claim that the Will does not reflect a promise made during the Testator’s lifetime (a constructive trust or equitable estoppel claim), then the executor may be required to obtain evidence to refute the claims made by the claimant.

    Once you become aware that there is a claim against a Will in which you are the executor, you should immediately seek our advice. Using a lawyer with extensive experience in this area can reduce both the costs and stress associated with defending a Will and may also achieve a significantly better result for the beneficiaries of the Will.

    If you are an executor and you are defending a Will in NSW,  please contact WillClaim on (02) 8875 7792. We specialise in dispute cases and we can help you fulfil your duties as an executor.  

    Defending a Will in NSW: FAQs

    How will I know if someone is contesting or challenging a will?

    In most cases, you will receive formal notification of a contest or challenge from the claimant’s solicitor.

    We encourage you to seek legal advice as soon as you receive notice of a contest or challenge. At WillClaim, we can assist you to respond to the claim so that you can continue with your administering the estate.

    Call WillClaim on (02) 8875 7792 and take advantage of our FREE legal assessment. Together, we’ll work out the best way to proceed in defending a will in NSW.

    What is the process of defending a Will?

    Defending a Will involves looking at the nature of the claim, assessing the eligibility of the claimant and checking whether the claimant has made their claim within any prescribed time limits.

    Our experienced estate litigation lawyers can advise you as to the strengths and weaknesses of any claim against the estate.

    By looking at the circumstances of your case, we can advise you on the next steps that you should take as a defender of a Will in NSW.

    How much will it cost to defend a Will?

    So who pays to defend a contested Will?

    In most matters, the legal costs of defending a Will are met by the estate out of the assets of the estate. The executor will generally not be liable for any legal costs during the process provided that the executor acts in accordance with their obligations.

    Upon engaging our services, WillClaim will provide you with a detailed estimate of the potential costs. The costs may vary significantly depending on the circumstances of each Will Challenge or Will Contest.

    The costs are also affected by the willingness of the claimants to negotiate, and by the nature and complexity of any claims.

    If you are named an executor of a Will in NSW and a claim has been filed, or you anticipate a claim with be filed, then please contact WillClaim on (02) 8875 7792. Our Will Disputes lawyers specialise in estate litigation in NSW and are able to provide you with the legal advice you need.

    Will I have to go to Court to defend a Will?

    In most cases Will Challenges and Will Contests are settled before a Court hearing. Settlement be achieved through informal settlement negotiations, or through a formal mediation.

    A mediation is a meeting between the parties and their legal representatives which is facilitated by an independent mediator. The mediator helps the parties to work through options and see if you can agree on settlement.

    With a team of legal specialists behind you, it may be possible to reach a settlement that all parties can accept.

    If the parties fail to settle in mediation, the case will proceed to a court hearing and you will be required to attend court.

    While going to a mediation or a court hearing can be stressful, you can be sure that your WillClaim lawyers will guide you through the process.

    WillClaim can help you defend your Will.