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.
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.