As the Executor of a Will, you may need to defend a will from many challenges.
At Will & Estate Lawyers Australia, we specialize in Defending Contested Wills
The Executor of a Will has a duty to defend the validity of the will and uphold it.
Some of the will disputes you may encounter include:-
- Will challenge – where the validity of the Will is challenged on the grounds there was undue influence, duress or fraud. A will may also be contested if it was witnessed incorrectly or not at all.
- Family provision application – where a spouse, child or dependant of the deceased doesn’t dispute the contents of the Will, but does claim the Will doesn’t adequately provide for them.
If you are the Executor of a contested Will our Brisbane Contested Wills & Probate Lawyers can explain your duties and obligations and actively assist you to defend the estate. Contact us today for a free case assessment on 07 3073 2405.
What happens if someone contests a Will?
As an Executor, you or your solicitor may be served with a caveat (in the case of a Will challenge) or a Family Provision Application. A person planning to make a Family Provision application will usually first give you notice in writing of their intention to contest the will.
The procedures differ depending on the type of dispute.
Defending a Family Provision Application
In the case of a family provision application, you will proceed to obtain a grant of probate of the Will as there is no dispute about whether the will is valid.
The Application will name you as the Respondent in your capacity as personal representative of the estate.
As Executor you will be required to file an affidavit containing evidence of the assets, liabilities and value of the estate. You also respond to other matters raised to the extent that you have knowledge of those matters. An Executor may also file affidavits from other people with knowledge of the deceased’s affairs.
It is important that you respond truthfully and within the strict time periods given. You must comply with the Court ordered schedule including attending and meaningfully participating in mediation. Claims not settled at mediation will proceed to Court.
If you are the Executor of a challenged Will, you don’t have to fight it alone. This area of law can be complex. Provided the Executor acts reasonably, their legal expenses will usually be paid from the Estate.
Defending a Will Challenge
If you are the Executor of a Will under challenge, you or your solicitor will receive notice a caveat has been lodged. The caveat prevents the registry from granting probate for six months.
The normal course will be for you to file an application for probate in solemn form. You and the Caveator (the person challenging the will) must file affidavit evidence supporting your position.
The information in your affidavit may include medical records, hospital reports, and bank statements. The material will vary depending on the type of dispute.
For an obligation-free case assessment, contact Will & Estate Lawyers Australia today.
Who Pays to Defend a Contested Will?
The legal fees of an Executor defending a Will in Qld are usually paid from the estate. However, there are cases where the Executor was made to pay their own fees where it was found they defended a Will in an unreasonable manner. This is most common where the Executor of the Will is also the sole beneficiary.