Defending a Will Lawyers in Sydney & NSW
- Strong defence of Wills against all claims & challenges.
- Protecting estates from provision claims & validity challenges.
- Expert legal guidance for Executors & beneficiaries.
- Upholding the final wishes of the deceased.
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NSW Estate Lawyers Defending Wills for:
Executors of the Will
Providing expert legal representation for Executors who have a duty to uphold the terms of the Will and defend the estate against any claims.
Executors of the Will
Beneficiaries of the Estate
Assisting beneficiaries whose inheritance is at risk due to a Family Provision Claim or a challenge to the Will's validity.
Beneficiaries of the Estate
Trustees & Administrators
Advising Trustees and Administrators on their duties and responsibilities when a Will or estate they manage is being disputed.
Trustees & Administrators
Executors of Complex Estates
Specialised defence for Executors managing complex estates with blended families, multiple trusts, or business assets, which often face disputes.
Executors of Complex Estates
Charitable Beneficiaries
Representing charities and non-profit organisations named as beneficiaries in a Will to ensure the deceased's philanthropic wishes are defended and honoured.
Charitable Beneficiaries
Our Services in Defending against Will Challenges, Contests & Family Provision Claims
Defending Testamentary Capacity
We build a robust defence against claims of incapacity, gathering medical and witness evidence to prove the will-maker was of sound mind.
Rebutting Undue Influence Claims
Our lawyers expertly rebut claims of undue influence by demonstrating the will-maker acted freely and their Will reflects their true intentions.
Disproving Fraud & Forgery
We defend against serious allegations of fraud or forgery by meticulously examining evidence and engaging forensic experts where necessary.
Defending Inadequate Provision Claims
We represent estates against Family Provision Claims, arguing that the deceased made adequate and appropriate provision for the claimant.
Proving a Claimant is Undeserving
We build a case based on a claimant’s poor character, past conduct, or estrangement to argue they are not deserving of provision from the estate.
Protecting Estate Assets
Our team works to protect all estate assets, including those that might be designated ‘notional estate’, from being diminished by a claim.
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Our Process for Defending a Will against Validity Challenges & Family Provision Claims
1
Initial Consultation & Claim Assessment
We start with a detailed review of the claim against the Will, assessing its grounds and advising you on the strength of the estate’s defence.
Initial Consultation & Claim Assessment
We start with a detailed review of the claim against the Will, assessing its grounds and advising you on the strength of the estate’s defence.
2
Evidence Gathering & Case Preparation
Our lawyers meticulously prepare the estate’s defence, gathering crucial evidence and drafting strong affidavits to counter the claimant’s case.
Evidence Gathering & Case Preparation
Our lawyers meticulously prepare the estate’s defence, gathering crucial evidence and drafting strong affidavits to counter the claimant’s case.
3
Negotiation & Mediation
We represent the estate in all negotiations and at compulsory mediation, aiming to resolve the dispute favourably and uphold the testator’s intentions.
Negotiation & Mediation
We represent the estate in all negotiations and at compulsory mediation, aiming to resolve the dispute favourably and uphold the testator’s intentions.
4
Supreme Court Defence
If a resolution cannot be reached, we provide expert representation in the Supreme Court, robustly defending the Will on behalf of the estate.
Supreme Court Defence
If a resolution cannot be reached, we provide expert representation in the Supreme Court, robustly defending the Will on behalf of the estate.
Rated 5-Star By Our Clients
Why Clients Choose Us
Decades of Experience
Our Wills & Estates lawyers have over 50 years of experience in successfully defending Wills against both validity challenges and Family Provision Claims.
Decades of Experience
Our Wills & Estates lawyers have over 50 years of experience in successfully defending Wills against both validity challenges and Family Provision Claims.
Strategic & Robust Defence
We provide a thorough analysis of any claim against the estate and develop a robust legal strategy focused on upholding the deceased’s wishes.
Strategic & Robust Defence
We provide a thorough analysis of any claim against the estate and develop a robust legal strategy focused on upholding the deceased’s wishes.
Guidance for Executors
We offer clear, practical advice to Executors, guiding them through their duties and protecting them from personal liability during a dispute.
Guidance for Executors
We offer clear, practical advice to Executors, guiding them through their duties and protecting them from personal liability during a dispute.
Focus on Cost-Effective Resolution
Our primary goal is to resolve disputes efficiently through negotiation or mediation, protecting the estate’s assets from costly and prolonged litigation.
Focus on Cost-Effective Resolution
Our primary goal is to resolve disputes efficiently through negotiation or mediation, protecting the estate’s assets from costly and prolonged litigation.
Speak to us Now or Request a Consultation.
Upholding the Deceased's Final Wishes
As an Executor, your primary duty is to uphold the last valid Will of the deceased. This responsibility becomes critical when the Will is disputed, either through a challenge to its validity or a claim for further provision from the estate. Defending a Will is about ensuring the testator’s intentions are respected and carried out as they directed.
Disputes can arise from claims of mental incapacity or undue influence, or from eligible persons who feel they were inadequately provided for. Our role is to provide you with expert legal advice to navigate these claims, protect the estate’s assets, and robustly defend the terms of the Will.
The Executor's Role in Will Disputes
When a Will is disputed, the Executor must act impartially and in the best interests of the estate. The first step is to seek legal advice immediately upon being notified of a claim and to avoid distributing any assets until the dispute is resolved. You have a duty to respond to legal proceedings and provide information to the court.
Your legal costs for properly defending the Will are typically paid from the estate’s assets. While most disputes are settled at mediation to save time and expense, our lawyers will provide strong representation in the Supreme Court if necessary, ensuring you fulfill your duties correctly and without personal liability.
Defending Against Validity Challenges
A ‘challenge’ to a Will asserts that the document itself is invalid. This may be on grounds that the will-maker lacked the mental capacity to sign, was subject to undue influence or coercion, or that the Will is a forgery.
Defending against these claims involves gathering strong evidence to prove the Will is legitimate. This can include obtaining the drafting solicitor’s notes, medical records, and witness testimony. A robust defence is essential to prevent a valid Will from being overturned, which would cause the estate to be distributed according to a prior Will or the rules of intestacy.
Defending Against Family Provision Claims
A ‘contest’ or Family Provision Claim occurs when an eligible person argues the Will is valid, but that it fails to make adequate provision for their needs. As the Executor, your role is to defend the distribution set out by the deceased.
The defence often involves demonstrating that the provision made was adequate, or that the claimant’s character or relationship with the deceased does not warrant further provision from the estate. This requires a careful legal strategy to balance the claimant’s needs against the deceased’s wishes and the interests of other beneficiaries.
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How Can Our Expert NSW Wills & Estate Lawyers Help?
Wills Drafting & Review
Crafting & updating clear, legally sound Australian wills to ensure your specific wishes for your domestic assets are documented & protected & more…
Wills Drafting & Review
Domestic Estate Planning
Developing tailored Australian estate plans to safeguard domestic assets, minimise tax, & provide for your loved ones effectively & more…
Domestic Estate Planning
International Estate Planning
Expert advice on cross-border estate planning, international wills & trusts, managing overseas assets & navigating tax-efficient wealth transfer strategies & more…
International Estate Planning
Challenging a Will
(Validity Issues)
(Validity Issues)
Expertly challenging the validity of a will based on grounds like undue influence, lack of testamentary capacity, suspicious circumstances, or fraud & more…
Challenging a Will
(Validity Issues)
Contesting a Will
(Family Provision Claims)
(Family Provision Claims)
Assisting eligible persons to contest a will for adequate provision under the Succession Act 2006 (NSW), navigating negotiations & court claims for a fair share & more…
Contesting a Will
(Family Provision Claims)
Defending a Will
Representing executors & beneficiaries in defending the validity of a will against challenges or defending against family provision claims & more…
Defending a Will
Grant of Probate
Guiding Executors through the Supreme Court process to obtain a Grant of Probate, which officially validates the Will and authorises them to act.
Grant of Probate
Appointment of Enduring Power of Attorney
Preparing essential enduring powers of attorney to appoint trusted individuals for your critical financial & legal decisions if you lose capacity & more…
Appointment of Enduring Power of Attorney
Appointment of Enduring Guardian
Drafting appointments of enduring guardians to make crucial personal, lifestyle & healthcare decisions on your behalf if you’re unable & more…
Appointment of Enduring Guardian
Testamentary Trusts
Establishing effective testamentary trusts within your will for asset protection, tax benefits, and flexible provision for beneficiaries & more…
Testamentary Trusts
Intestacy Law & Advice
Guiding families through the complexities of intestacy when a loved one dies without a valid will, ensuring legal distribution of assets & more…
Intestacy Law & Advice
Letters of Administration
Resolving disputes between executors, administrators, or beneficiaries regarding the management & administration of a deceased estate & more…
Letters of Administration
Administration of Estate
Assisting Executors with the administration of deceased estates, ensuring the lawful and efficient collection, management, distribution of assets & more…
Administration of Estate
Advance Care Directive
Drafting clear and legally sound directives to outline your future medical treatment and end-of-life care wishes & more…
Advance Care Directive
Special Disability Trusts
Establishing specialised trusts to provide for the long-term care and financial security of a loved one with a severe disability & more…
Special Disability Trusts
Defending a Will FAQs
What does it mean to "defend a Will"?
Defending a Will means acting to uphold its terms when it is either contested (via a Family Provision Claim) or its legal validity is challenged. This is typically the responsibility of the Executor.
Who is responsible for defending a Will?
The Executor of the estate has the primary duty to defend the Will. In some circumstances, major beneficiaries whose inheritance is at risk may also be involved in the defence.Eligible persons are defined by law and include spouses, de facto partners, children, and former spouses. Grandchildren or members of the household may also be eligible if they were dependent on the deceased.
What is the difference between defending a 'contest' and a 'challenge'?
Defending a ‘contest’ involves responding to a Family Provision Claim where someone argues they didn’t receive adequate provision. Defending a ‘challenge’ involves proving the Will itself is legally valid against claims like fraud or lack of capacity.
What are the main grounds for challenging a Will’s validity?
The common grounds you may need to defend against include claims that the will-maker lacked testamentary capacity (was not of sound mind), was subject to undue influence, or that the Will is a forgery or fraudulent.
What is a Family Provision Claim?
A Family Provision Claim is an application made by an eligible person who contests the Will, arguing that they have not been adequately provided for from the estate for their proper maintenance and support.
Who can make a Family Provision Claim that I might have to defend?
Only “eligible persons” can make a claim. This list includes spouses, children, de facto partners, former spouses, and in some cases, dependent grandchildren or household members.
What is the first step an Executor should take if a Will is disputed?
The first and most important step is to seek expert legal advice immediately. Do not distribute any part of the estate until you have received legal guidance, as you could be held personally liable.
What are my duties as an Executor when defending a Will?
Your duties include protecting the assets of the estate, acting impartially, providing necessary information to the court and claimants, and attempting to resolve the dispute in the best interest of the estate and its beneficiaries.
Will I have to go to court to defend a Will?
Not always. The vast majority of Will disputes are resolved through negotiation or at a compulsory mediation, avoiding the cost and stress of a final court hearing.
What is mediation in a Will dispute?
Mediation is a confidential settlement conference where a neutral mediator helps you, the claimant, and any other beneficiaries negotiate a resolution. A successful mediation results in a binding agreement.
Who pays the legal costs for defending a Will?
As the Executor, your reasonable legal costs for defending the Will are typically paid from the assets of the estate itself. The court has the final say on costs, but an Executor acting properly is usually protected.
Can I just agree to a claimant's demands to settle a dispute?
As an Executor, you have a duty to all beneficiaries named in the Will. You cannot simply agree to demands without considering if the settlement is reasonable and in the best interests of the estate as a whole. Court approval is often required for any settlement.
What happens if a challenge to the Will's validity is successful?
If the Will is found to be invalid, the court will set it aside. The estate will then be distributed according to the terms of a previous valid Will or, if none exists, the rules of intestacy.
What happens if a Family Provision Claim against the Will is successful?
If a claimant successfully contests the Will, the court will order a specific provision or legacy to be paid to them from the estate. The rest of the Will generally remains valid and is distributed accordingly.
How do I defend against a claim of "lack of testamentary capacity"?
Defending against this involves gathering evidence to prove the will-maker was of sound mind. This includes the drafting solicitor’s notes, medical records, and witness testimony from those who knew the deceased at the time.
How do I defend against a claim of "undue influence"?
This involves demonstrating that the will-maker made their decisions freely, without coercion. Evidence from the drafting solicitor and independent witnesses is crucial to rebut claims of undue influence.
What is a "probate caveat" and how does it affect me?
A probate caveat is a notice filed with the court by a person challenging a Will’s validity. It temporarily stops you, the Executor, from obtaining a grant of probate and administering the estate until the validity dispute is resolved.
Is there a time limit for someone to contest the Will?
Yes. In NSW, a person making a Family Provision Claim generally has a strict 12-month time limit from the date of death. This is an important factor in the estate’s defence.
Is there a time limit for someone to challenge the Will's validity?
There is no strict statutory time limit to challenge a Will’s validity. However, a person must not have an unreasonable delay, and it becomes much harder for them after probate has been granted and the estate distributed.
Why do I need a lawyer to defend a Will?
Defending a Will is a complex legal process with strict court rules and duties for the Executor. A lawyer protects you from personal liability, handles all negotiations and court procedures, and ensures the deceased’s wishes are robustly defended.
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