Do You Need to Defend a Claim Against a Will?

There are two important actions that could be brought against a deceased person’s estate. The first involves a person, or persons, contesting a Will in order to claim some provision, or additional provision, from the estate.

The second is a challenge against the validity of the Will itself. A challenge may be based on a failure to deal with the required formalities, a lack of testamentary or mental capacity on the part of the Will-maker, where suspicious circumstances seem to surround the preparation of the Will, or where there are allegations of undue influence or fraud.

The Executor, the person who has been appointed to administer a deceased’s estate, would normally be responsible for defending a contested Will where an action has been brought against the estate.

Defending a contested Will

An eligible person may claim an estate if they believe that they have been unfairly treated in a Will. Eligible persons include spouses, de facto partners, former spouses, children, someone wholly dependent on the deceased and a person who was living in a close personal relationship with the deceased at the time of death.

Determining whether the deceased failed to leave adequate provision

The first step is to establish the eligibility of the applicant. Assuming eligibility is established, consideration must then be given as to whether the deceased failed to leave the applicant with adequate provision for their ‘proper maintenance, education and advancement in life’. If this can be demonstrated, the Court must then determine what provision, if any, should be made for the applicant out of the deceased’s estate.

What factors will the Court consider?

The Court will consider a range of factors, including the financial position of the claimant, the financial position and needs of the other beneficiaries who will inevitably be impacted by any redistribution, the size of the estate and the relationship between the deceased and the claimant.

The role of the Executor

Not all claims are there to be vigorously defended. In exercising their duties, an Executor must act reasonably, including seeking to negotiate and compromise with the claimant, where appropriate. The Executor has a duty to uphold the provisions of the Will and protect the estate’s assets but genuine claims that are likely to succeed in Court proceedings need to be dealt with appropriately. In such a case, the Executor should consider negotiating a settlement, following legal advice, and avoid litigation costs. Similarly, if the estate is relatively small, it may be appropriate to compromise rather than proceeding to a Court hearing and incurring disproportionate additional costs.

If the claim does proceed to Court, the Executor must file and serve evidence relevant to the claim. This would include details of the assets, liabilities and net value of the estate. The statement might include any potential “notional” estate. In NSW, a Court may order property that no longer forms part of an estate to be “added back” to the schedule of assets. It can, for example, include property that was disposed of by the deceased where the full value was not achieved.

The Executor would also provide details of any eligible persons to make a family provision claim and, as the claim progresses, responses to the evidence filed and served on the claimant’s behalf.

The Executor may be joined as a defendant to the proceedings by one or more of the beneficiaries. It may be appropriate for beneficiaries to be separately represented in the proceedings.

Defending a challenge to the validity of a Will

A challenge to the very validity of a Will might be forthcoming. This may be because it is argued that the Will is void for the lack of compliance to the correct formalities: for example, not being correctly signed or witnessed. Other challenges may include grounds alleging a lack of mental capacity on the part of the Will-maker, or duress placed on them, or fraud. Often the challenger is a beneficiary under an earlier Will who has lost entitlement because of the ‘current’ Will.

Defending the validity of the Will normally falls to the Executor in accord with their duties. Where there is no Executor, it may be undertaken by a beneficiary.

Usually, the challenger will lodge a caveat against a grant of probate (the legal document which confirms the Executor is able to deal with the estate) being made. They may also commence a claim seeking a grant of probate for a Will they regard as being the valid one.

Where the validity of a Will is in question, the Executor will often initiate proceedings to ‘prove’ the Will. Once proceedings commence, the parties will need to file evidence supporting their respective positions. The nature of the evidence will depend on the circumstances under which the Will was produced and the different grounds on which the challenge is being made. The legal arguments can become particularly complex, and expert legal advice becomes essential.

Acting as an Executor

Occasionally, an Executor will face a contest as to the fairness of a Will from an eligible person. This is referred to as a family provision claim under the Succession Act 2006 (NSW). The increasing numbers of ‘blended’ families is one of the reasons leading to an increase in the number of Wills that are contested.

In different circumstances, a challenge may be made to the validity of a Will, often by someone who was a beneficiary of an earlier Will but has now lost out.

If you are an Executor or beneficiary of the deceased’s Will discovering that the Will is being challenged or contested will be an unwelcome added burden. Executors are often inexperienced in the role and are not in a position to deal with the potentially complex legal issues that can arise.

Contact our Contesting a Will Solicitors in Sydney, NSW 

The specialist lawyers at Szabo & Associates Solicitors can advise on all aspects of Wills and Estates, including contested Wills. If you need to defend a claim against a Will, please call us 02 9281 5088 or fill in our online contact form.