If you are the Executor or Administrator of a contested estate, you have a duty to defend the estate and (if applicable) uphold the Will.
The procedure to follow when defending a Claim brought against an estate varies depending on the type of will challenge. Below are some of the most common challenges and how to defend a claim against the estate.
Whether you are the Executor or Administrator, you . You don’t need to battle this on your own: legal fees to defend an estate are paid from the estate. Even if you are reluctant to retain a solicitor because you are currently the only estate beneficiary, it’s crucial you consider the possible financial impact on estate assets if you lose the claim. You should know that if a claim is successful, their legal costs will usually be paid from estate funds, so it is essential you have the information to decide whether to settle the claim as soon as possible.
Call us 07 3073 2405 for a free consultation and case assessment with an Estate Dispute Lawyer to help you Defend a Contested Will in Qld.
Family Provision Claims (Qld)
In Queensland, a person may challenge a Will which they have been left out of or believe does not fairly provide for them. They must be an eligible person which includes:-
- a spouse (including de-facto spouse);
- child (including step-child); or
- the parent of a person who was substantially maintained or supported by the deceased.
Eligibility to make the claim is strict, as are the time limits which apply. If eligibility is not established or if the claim is made out of time, you can stop the will being contested swiftly.
What to Expect from the Family Provision process
The person contesting the will must give the Executor notice within 6 months of the date of death. Before 9 months from the death they must file the Application in the Queensland Supreme Court and serve it on you or your solicitors.
The documents filed must include an affidavit – a written statement sworn under oath – which states the Applicant’s relationship to the deceased and their eligibility to make the Family Provision application. It must also include details of their ‘needs’ including disclosure of their personal financial circumstances, any medical conditions and/ or promises made to them by the deceased.
In defending the Will you have the opportunity respond to the Applicant’s claim by filing an affidavit. This will include details of the deceased estate’s financial position. It may also respond to any factual claims raised by the Applicant.
If the claim has merit, you should consider any legal advice provided to you which may include compromising or settling the claim at or before mediation. If the claim cannot be resolved at mediation, it will proceed to a hearing by the District or Supreme Court where the outcome will be decided.
When an Executor comes to us with a legal case on their hands, we assess the prospects, plan how we can put the best case forward and set a road map to resolving the dispute fairly, but without delay. Call us today on 07 3073 2405 for a free case assessment.
Will Challenge
Claims against the estate of the deceased may include a claim the Will is invalid on the grounds of incapacity, undue influence, duress or fraud.
A person must have testamentary capacity to make a Will which is commonly considered to mean sound mind, memory and understanding.
If the Will was changed shortly before death, or if the deceased had a condition like dementia which may have affected their cognition, it is possible a person who is unhappy with their share of the Will may challenge it.
What to Expect
As Personal Representative of a contested estate you or your lawyer may be served with a caveat. In the contest of Wills & Estates law, a caveat is a document filed which prevents the Grant of Probate of a Will for 6 months. This allows the person lodging the caveat time to have their claim against the validity of the Will heard.
Each party files affidavit evidence in support of their respective positions. Depending on the circumstances you may be expected to obtain and exhibit medical files and reports, statements from witnesses or neighbours, as the case may call for.
Will challenges are complicated matters. We encourage you to seek the assistance of a specialised Wills & Estates Lawyer to help you defend a Will dispute.
Duties in your Role as Personal Representative
Whether you are the Executor or Administrator of the estate, upon receiving notice of the will challenge, you must
- preserve the estate and not distribute assets to any beneficiary;
- identify and list all assets and liabilities of the estate;
- comply with the time schedule set by the Court including attending when required or engaging a lawyer to appear for you;
- properly consider matters for and against the claim;
- assess the Applicant’s prospects of success without bias;
- report to beneficiaries on the progress of the claim; and
- act reasonably when defending the claim and reasonably consider advice to legal compromise the claim.
Defending a claim against the estate is complicated and time consuming. The team at Will & Estate Lawyers Australia can help you successfully resolve the dispute, complete the estate administration – securing your release from all liability, and ensure you receive your Executor’s Commission for your pains and troubles of administering the estate.
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