Wills, Estates & Succession Planning 29 May 2024

What do I do if someone contests a Will?

Part IV of the Administration and Probate Act 1958 (Vic) (‘the Act’) provides for claims to be made by family members or other persons who could argue they were financially dependent upon the deceased person. In Victoria, even if a Will is created correctly, disputes can arise after a person’s death. The law allows for a Will to be challenged where a Testator has failed to provide adequate support and maintenance for any eligible person who the Testator has a moral duty to make provision.

Where a family provision claim is made, the Court will generally make an order that the parties participate in mediation in an attempt to resolve the dispute by agreement and avoid the need for costly and lengthy litigation. If the parties are unable to resolve the dispute during the mediation process, the matter will proceed to be dealt with before the Court.

I am an Executor and somebody has contested the Will – what do I do?

Where a family provision claim is made against an estate, the Executor of the estate will be named as the Defendant to the claim and must seek to uphold the terms of the Will. In defending the claim, the Executor must act in the interests of the estate and consider whether it is in the interests of the beneficiaries to settle the claim by agreement to avoid the need for litigation, or alternatively, to continue to defend the claim.

There are a range of factors the Executor ought to consider in assessing the merits of the claim and the potential avenues for settlement, such as:

(a)           The size of the estate;

(b)           The legal costs to be incurred by defending the claim;

(c)           The material and evidence available to defend the claim;

(d)           The financial circumstances of the claimant and their ability to provide adequately for their own proper maintenance and support; and

(e)           The financial circumstances of the other beneficiaries and their ability to provide adequately for their proper maintenance and support.

I am a beneficiary of a contested estate – what do I do?

Where a family provision claim is made against an estate, the Court will typically order that notice of the application must be served on the beneficiaries named in the Will or entitled under the rules of intestacy. In most cases, the Court will make an order that the beneficiaries have the right to file and serve a position statement outlining their position with respect to the claim and to participate in any mediation conducted in relation to the dispute.

In some cases, the beneficiaries of a contested estate may wish to seek leave from the Court to be added as defendants to the proceedings. However, in circumstances where the Executor must seek to uphold the terms of the Will and act in the best interests of the beneficiaries when defending the claim, this is not always necessary.

Will my legal fees be covered by the estate?

In most cases, the legal costs incurred in defending a family provision claim will be paid by the estate, provided the Executor has acted reasonably in the circumstances. Although the Executor must seek to uphold the terms of the Will, they must also demonstrate a willingness to negotiate a settlement to avoid costly and lengthy litigation and act in the best interests of the beneficiaries, noting that the costs involved in defending a family provision claim will diminish the value of the estate.

On the contrary, the claimant will be responsible for their own costs when making a claim for further provision from a deceased estate. It is often the case that where a family provision claim is settled at mediation, the parties agree for the claimant’s costs, whether partly or wholly, to be borne by the estate.

Where a family provision claim proceeds to Court and the claimant receives a successful outcome, the Court may order that part or all of the claimants costs should be paid by the estate. These costs are usually calculated by applying the relevant Court scale of costs applicable to the matter, and generally include those costs which are reasonably incurred and of a reasonable amount. Importantly, an award of costs is generally insufficient to cover the whole of the legal costs incurred, meaning the claimant will be personally liable to pay the balance.

In circumstances where the claimant is unsuccessful in their claim for further provision, the Court may order the claimant to pay their own costs as well as those incurred by the other parties to the proceedings. Importantly, the Court’s assessment of costs will depend largely on the conduct of the parties throughout the course of the proceedings, including the validity of the claim and the parties’ willingness to compromise.

Kirsty Brealey.
Kirsty Brealey Special Counsel Wills, Estates & Succession Planning View profile
Grace O’Brien.
Grace O’Brien Law Graduate Employment, Discrimination & Equality Law View profile
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