Defending A Contested Will

Defending A Contested Will

Find out more about what happens when a will is contested. Under what circumstances can this occur? Who can lodge a dispute, and what are the duties of the executor.

Part of an executor’s role is to uphold the terms of the deceased person’s will. It can be daunting and challenging, particularly for executors with limited legal knowledge or experience. When a will is contested, it can significantly increase the challenges and can be a particularly stressful experience. Understanding how to defend a disputed will is crucial to ensure that the wishes of the deceased person are upheld. Let’s take a closer look.

Defending A Will

When a will is prepared correctly by complying with the appropriate legal requirements, it should help to mitigate the risk of someone contesting it. A valid will provides directives regarding the distribution of the estate after death, and it also appoints an executor to act as the administrator. When a person contests the will, they are challenging the decisions made by the deceased person and question the validity of the document.

There are several common scenarios where a will can be contested. The role of the executor is to defend the will to ensure the assets are distributed as per the wishes of the deceased.

An executor must uphold the will’s provisions reasonably and legally and ideally try to avoid a costly legal battle. When defending a will, they will need to determine:

  • Whether the challenger is legally eligible to lodge a dispute
  • Has the challenge been made within the required time frame?

Time Limits For Contesting A Will?

When defending a contested will, the timing can play a pivotal role. Each state in Australia has its legislation, which means that time frames vary depending on the deceased’s state. Applications in Victoria, for example, must be made within six months after the Grant Of Probate date or three months after the notice to the estate. If the dispute has not been lodged within the prescribed time limit, it will not be approved, especially if the estate has already been distributed to the beneficiaries.

When Can A Will Be Contested?

As an executor, you may need to defend a will from challenges/being contested. The situations when a will might be contested can vary, but there are these are the three most common scenarios:

Validity Of The Will

A dispute can occur when a person disputes the will’s validity, which means that the will would become invalid as it does not meet the necessary legal requirements.

Several grounds may be questioned, including undue influence, fraud, duress, lack of mental capacity, knowledge or approval, or forgery.

Older people, for example, suffering from mental health issues such as Alzheimer’s or dementia, should plan to avoid potential estate litigation in the event of their death. Ensuring that their will is up to date and setting up an enduring power of attorney can help to protect the person’s estate.

For example, if the will was not prepared correctly, it could become invalid if it was not signed, written as per the law, or not witnessed or notarised.

Family Provision Claim

When making a will, there are individuals for whom the will-maker is morally obliged to provide. This may include a dependent child or spouse. If this person is left out of the will or not adequately provided for, they are entitled to apply for a share or more significant share of the deceased’s estate; this is called a Family Provision Claim. An estate dispute can occur if a family member believes that the will is unfair, if the share is not adequate for their maintenance and support, or unduly influenced by other family members or beneficiaries.

An eligible person can only make a family provision claim. The time limit for a family provision application is 12 months from the date of death.

Who Is Legally Eligible to Contest A Will?

When dealing with claims regarding a family provision, an applicant must, under the 2006 Succession Act, be legally eligible to make a claim. A challenge can not be made purely because someone is unhappy with the terms. They must be eligible as a beneficiary or have entitlement under intestacy laws. This may include:

  • Spouse
  • De facto partner
  • Children, including adopted, stepchildren and grandchildren
  • Former spouses
  • Dependent persons who were members of the same household
  • Next of kin

Grant Of Probate Revocation

Probate can be revoked in several circumstances, including when an executor does not carry out their duties appropriately, or fraudulent cases, when a more current will has been located, or a conflict of interest, or when an executor becomes incapable or unwilling to fulfil their duties.

When defending a will, the executor should obtain assistance from a team of estate lawyers whose expertise can help ensure the wishes of the deceased person are upheld.

What Happens When Someone Contests A Will?

There are several disputes, and each will have its appropriate action.

When you are an executor of a will, you or your lawyer may receive a caveat or be served with a Family Provision Application 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 for six months 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.

A Family Provision application will generally be preceded by a letter of intent to contest the will.

When defending a will, obtaining expert legal advice from your estate 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. This can avoid a costly legal battle in court, mainly if the deceased person had a small estate.

If an agreement can not be reached independently, then the executor may be required to participate in the court process to defend the will’s validity.

To successfully defend a challenge on a will, the executor will need to provide evidence to the court, including medical records, bank statements, hospital reports, and an affidavit supporting their position. They should provide evidence that supports the rejection of the claim, including the nature of the relationship between the deceased and the claimant, the financial situation, and the claimant’s needs. It is crucial that the executor determines the merits of the contest and provides as much evidence as possible to reject the claims.

If a will is invalid, the executor can look at an earlier will. If that will is valid, then probate can be granted.

Being an executor and defending a contested will can be highly stressful and complicated, particularly if the executor is a deceased’s family member or trusted friend with minimal legal knowledge. The executor defending a will should seek advice from lawyers to help them achieve the best possible outcome for all interested parties and legally uphold the will’s provisions.

Duties Of An Executor

As an executor, defending the validity of the will and upholding the deceased person’s wishes is crucial. 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.

Some of the core responsibilities of an executor include:

  • Locating the original will
  • Gathering the real and personal assets
  • Provide the Supreme Court with an inventory of all of the deceased’s assets comprising the estate
  • Keeping the assets of the estate safe, securing property and valuables
  • Pay all outstanding liabilities and estate debts
  • Upon death, notify all interested parties and beneficiaries
  • Prepare and advise total costs involved in administration to the court
  • Apply for Letters of Administration or a Grant of Probate
  • Prepare the final income tax returns of the deceased estate
  • Distribute the assets as per the deceased’s will
  • Administration of the estate

During court proceedings, family history, accusations and secrets can be raised. An executor must remain focused and calm, and work as per the law at all times. Obtaining assistance from an experienced lawyer can help ensure the deceased’s wishes are upheld.

How Long Does It Take To Defend A Will?

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.

Who Can Defend A Will?

The will’s validity can only be defended by the legal representative of the deceased’s estate. This means the executor, administrator or person appointed by the court is solely responsible for protecting the will. The executor may have to attend court and can seek advice from an experienced team of estate lawyers.

If the executor claims against the deceased’s estate, they must renounce their position, and an independent administrator will manage the estate.

How Much Will Defending A Will Cost?

In most cases, the deceased’s estate pays 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.

Summary

As an executor, you may need to defend a will from being contested. There are several common scenarios where a will can be challenged. It is the role of the executor to protect the will, to try to ensure that the estate assets are distributed as per the wishes of the deceased.

When defending a will, they must determine whether the challenger is eligible to dispute the will and if it has been lodged within the required time frame.

A claim can occur when parties challenge the will’s validity, which means that the will would become invalid as it does not meet the necessary legal requirements. Several grounds may be questioned, including undue influence, fraud, duress, lack of mental capacity, knowledge or approval, or forgery.

If an entitled person is left out of the will or not adequately provided for, they are within their right to make an application for a share or more significant share of the deceased’s estate. This is called a family provision claim. Probate can be revoked in several ways, including when an executor does not carry out their duties appropriately.

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.

FAQs

How Do I Stop A Will Being Contested?

When a will is prepared correctly by following the appropriate legal requirements, it can help to mitigate the risk of someone contesting it. Also, an executor who promptly administers the estate can help avoid the risk of the will being contested, as it must be lodged within the prescribed time limits.

There is no way to guarantee that a will is not challenged, as the 2006 Succession Act legally allows an eligible person to apply to the courts for a Family Provision Order.

Who Pays To Defend A Contested Will?

The deceased’s estate pays the legal costs in most cases, and executors are not personally responsible for any charges. The legal fees can vary depending on how complex the case, in which state the dispute 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.

How Do You Fight A Contested Will?

When defending a will dispute, obtaining expert legal advice from your lawyer can help settle a claim before it reaches the final hearing in the Supreme Court. Both parties should participate in a dispute resolution negotiation or mediation session to resolve their conflicts independently and achieve a mutually agreeable outcome. This can avoid a costly legal battle in court, mainly if the matter is for a small estate.

If an agreement can not be reached independently, then the executor may be required to participate in the court process to defend the will’s validity.

In this case, to effectively defend a challenge on a will, the executor will need to provide evidence to the court, including medical records, bank statements, hospital reports, and an affidavit supporting their position. They should provide evidence that supports the rejection of the claim.

If a will of a deceased person is invalid, the executor can look at an earlier will. If that will is valid, then probate can be granted.

This area of the law can be complex, and the executor should seek legal advice from estate lawyers to help them achieve the best possible outcome.

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