Executors are personally responsible for the proper administration of the estate. Some of the core responsibilities of an executor include:
In addition to the above core responsibilities, an executor may be required to defend a Will from being challenged.
Once legal proceedings have commenced, it is the responsibility of an executor to answer the claim and seek legal advice. It can be stressful and challenging for an executor, and it is vital to understand your duties and obligations.
A dispute can occur when a person disputes the validity of the Will. A Will may be considered invalid where it fails to meet the necessary legal requirements, for example, not being signed correctly.
Validity may also be queried if:
There are 3 common grounds to challenge the validity of the Will:
A person making a Will must have ‘testamentary capacity’ at the time of making and signing their Will, in order for that Will to be deemed valid.
A person will be deemed to have testamentary capacity if they:
If a person did not possess testamentary capacity when they executed their Will, their Will shall be deemed invalid. In these circumstances, their most recent previous Will shall be relied upon, but if they did not have a prior Will, the intestacy provisions will apply.
A person must not be unduly influenced or placed under duress to prepare and sign their Will. If there is evidence a deceased was influenced or placed under duress, and they resultantly executed a Will contrary to their wishes, the Will shall be deemed invalid. Importantly, the Court will require strong evidence to be satisfied of undue influence.
The validity of a Will can be called into question if there was a significant change made to the Will shortly prior to the deceased’s death. For example:
The steps for challenging the validity of a Will varies depending on how far the estate administration has progressed:
If the Court makes a finding that the Will is invalid, the deceased’s prior Will may then be deemed to be their final Will.
If the deceased did not have a prior Will, the laws of intestacy shall apply instead of the Will.
An executor of a Will or the Estate’s Lawyer, may receive a caveat or be served with an Originating Motion from the person contesting the Will.
A caveat is a statutory injunction that prevents the issue of a Grant of Probate or Letters of Administration and a formal notification that another party has an interest in the estate. Administration of the estate is not possible whilst there is a caveat.
To successfully defend a challenge to a Will, the executor may need to provide evidence to the court, including but not limited to, medical records, bank statements, hospital reports, affidavit material supporting their position.
Being an executor and defending a contested will can be extremely stressful and complicated, particularly if the executor is a deceased’s family member or trusted friend. The executor defending a Will should seek legal advice early.
Another, more common claim against a Will is a family provision claim.
When making a Will, the Will maker has an obligation to make provision for eligible persons, such as their spouse and children. Where a person has been left out of a Will or not adequately provided for in the Will, that person can seek further provision from the estate. These proceedings are commonly known as Part IV proceedings as they are made pursuant to Part IV of the Administration and Probate Act (1958).
The role of the executor is to defend the Will to ensure the assets are distributed as per the wishes of the deceased.
An eligible person to contest a Will is:
In addition to being an eligible person, the claimant must prove the following:
There are a number of further factors which are considered, such as:
If the claim cannot be resolved by way of informal negotiations and a claim is filed in Court against the estate, the Court will set out a timetable for the matter, including deadlines for:
When defending a contested will, the timing can play a pivotal role.
Each state in Australia has its own legislation and time frames vary depending on the deceased’s state.
In Victoria, applications must be made within six months after the date on which Probate is granted. If the dispute has not been lodged within the prescribed time limit, it may not be approved, especially if the estate has already been distributed to the beneficiaries.
Defending a will can be an extremely complex and lengthy exercise, and depending on the complexity of the case and the number of challenges against the will, the time frame can vary. If the dispute can be settled through dispute resolution without going to court, the case will be finalised a lot faster. If the matter is to be decided in court, many factors could affect the time frame, and settlements can take anywhere between 6-24 months.
Estate lawyers specialise in defending contested wills and can offer professional legal advice.
In most cases, the deceased’s estate will pay the legal costs.
Executors are not personally responsible for any costs during the legal process unless they incur unreasonable legal expenses. The legal fees can vary depending on how complex the case, in which state of Australia the claim is lodged and how willing parties are to negotiate out of court.
If a court determines that one party is failing to participate in dispute resolution, or is unnecessarily delaying proceedings, then the court may order them to pay for the legal costs.
Court proceedings can be costly, and settling out of court is preferred.
When defending a will contest, lawyers can help settle a claim before it reaches the final hearing in the Supreme Court. This can be obtained by both parties participating in a dispute resolution negotiation or mediation session to resolve their conflicts independently and reach a mutually agreeable outcome.
The executor defending a will should seek legal advice from estate lawyers to help them effectively administer the estate and legally uphold the will’s provisions.
Coulter Legal offers practical assistance in handling contested will claims, ensuring the wishes of your loved one are respected.
Emotions might run high and complications can develop when someone contests a will. Our qualified lawyers are by your side, guiding you through the legal procedure with their in-depth understanding of estate law whilst providing practical and pragmatic advice. We take great care to build solid defences that preserve the validity of the will because we recognise how important it is to defend the testator’s wishes.
The Coulter Legal Estate Litigation team can guide you through the process of contesting a Will.