Defending a Will Lawyer Sydney, NSW

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.