Defending a Will in NSW: A Comprehensive Guide

Contact our Contesting a Will Solicitors in NSW - Sydney Solicitors for Contested Wills Claims

While based in New South Wales, Szabo & Associates Solicitors also help people in Queensland, Victoria, Tasmania, Western Australia (WA) and South Australia (SA) with contesting a Will, deceased estate litigation and more. If you are considering contesting a Will, contact our expert Contesting a Will Solicitors in Sydney today on 02 9158 6026 or make an online enquiry.

Defending a Will in New South Wales (NSW) can be a complex and emotionally challenging process. As an executor or administrator, you have the responsibility to protect the wishes of the deceased person and ensure the beneficiaries receive their rightful inheritance. However, there may be situations where the validity of the Will is challenged, or a family provision claim is made, resulting in the need to defend the estate. In this comprehensive guide to defending and contesting a Will, we will provide you with all the essential information and steps to effectively defend a Will in NSW.

Understanding the Need to Defend a Will

Defending a Will may arise in various situations, such as challenges to the validity of the Will, family provision claims, or disputes over the administration of the estate. It is crucial to approach these situations with a clear understanding of your position and the available options.

Defending a Contested Will in NSW

When faced with a family provision claim, the duty of the person defending is to uphold the provisions of the deceased's Will. However, it is essential to act reasonably and consider negotiation and compromise where appropriate. This is particularly important when dealing with smaller estates to avoid excessive legal costs.

As the defendant in family provision proceedings, you will need to provide relevant evidence, including details of the estate's assets, liabilities, and net value, potential notional estate, eligible persons making the claim, and the financial circumstances of the beneficiaries. In some cases, beneficiaries may choose to be separately represented, but they will bear their own legal costs.

What is "contesting a Will"?

Contesting a Will occurs when valued members of the deceased’s family feel they were unfairly left out of a Will or not adequately provided for following that person's death.

The contents of a Will can be challenged in Australia by an eligible person if there is a good reason. This can be based upon a number of factors including whether or not the situation is grossly unfair, financial needs of family members or other dependents, and if the Will maker was subject to undue influence or lacked mental capacity to make the Will.

A family provision claim on the deceased's estate can then be made to the to dispute the Will. It is important to obtain legal advice as soon as possible if you are considering making a claim.

The validity of a Will can also be challenged. This can include things such as whether the Will maker knew of the contents and impacts of their Will and whether the Will maker may have been influenced to include (or not include) particular provisions and/or beneficiaries.

What is a Family Provision Order in NSW?

A Family Provision Order is a legal order that allows a eligible person to claim a portion or all of a deceased person's estate if they believe that they have not been adequately provided for in the deceased's Will. This law is governed by the Succession Act 2006 (NSW).

Under the act, eligible persons include:

• the deceased's spouse,

• the deceased's children,

• the deceased's former spouse,

• Any person who was dependent on the deceased,

• A member of the deceased's household;

• or a person with whom the deceased was living in a close personal relationship at the time of the deceased's death.

A claim for a Family Provision Order must be made within 12 months of the deceased's death. However, the court may allow a claim to be made after this time if it is satisfied that there are sufficient reasons.

The court considers various factors when deciding whether to make a Family Provision Order. These factors include the claimant's financial needs, the nature and duration of their relationship with the deceased, the size and nature of the deceased's estate, and any provision made for the claimant in the deceased's Will.

To make a claim, the family members or other person claiming must commence court proceedings within the relevant time limits. Prior to the court hearing, the family member or other eligible person, must must set out the facts relied on in support of the claim, including details of the claimant's financial circumstances.

Defending a Will Challenge in NSW

When the validity of a Will is challenged, it is usually the executor named in the Will who seeks to prove its validity. The challenger is often a beneficiary under a previous Will or in intestacy. The process typically involves lodging a caveat against a grant being made without court notice.

If the person trying to prove the Will's validity initiates proceedings, the challenger will be joined as a defendant. Additionally, the challenger may initiate their own claim seeking a grant based on a different Will. The evidence presented will depend on the grounds for challenging the Will, such as lack of testamentary capacity, lack of knowledge and approval, undue influence, or fraud.

It is important to note that challenging the validity of a Will can be a lengthy and costly process. Settlement between the parties may be appropriate in some cases to mitigate the risks associated with litigation.

Who Can Defend a Will?

The responsibility to defend a Will usually falls on the executor or administrator of the estate. However, the specific process may differ depending on whether the claim is made under family provision legislation or challenging the Will's validity.

The named executor(s) is the appropriate person to defend the Will and uphold the deceased's wishes. If there is no executor, a major beneficiary may take on this role. In family provision claims, the executor/administrator is usually joined as a defendant. If the executor is making a claim for provision, a beneficiary or independent administrator may act as the defendant. In cases where there is no Will, the appointed administrator or a major beneficiary would defend against a provision claim.

How to Defend a Will

The process of defending a Will depends on the nature of the dispute, whether it involves the validity of the Will itself or a family provision claim. In cases challenging the Will's validity, the executor named in the Will typically initiates proceedings as the plaintiff. The person challenging the Will is joined as a defendant.

Evidence is presented by both parties to support their positions. The nature of the evidence will vary based on the circumstances surrounding the Will's creation and the grounds for challenging its validity. It is important to note that defending a Will can be complex, requiring testimonies from witnesses, medical professionals, and forensic experts. Home-made Wills may present additional challenges due to the lack of reliable witnesses.

Costs of Defending a Will

Generally, a defendant in family provision proceedings can expect their legal fees to be paid out of the estate if they have acted reasonably. However, if the defendant has been overly litigious or acted unreasonably, they may not be successful in recovering their costs. It is crucial for the defendant to uphold the provisions of the Will while attempting to negotiate and compromise with the claimant.

If a plaintiff is successful in obtaining provision from the estate, their party/party costs will typically be paid out of the estate. However, there may be cases where the plaintiff is unsuccessful in recovering their costs due to their conduct or failure to accept reasonable settlement offers. The court may also impose capping orders to limit the amount of costs that can be recovered from the estate, particularly in smaller estates.

Contact Contesting a Will Solicitors in Sydney Today

Defending a Will in NSW requires careful consideration, knowledge of the legal process, and strategic decision-making. As an executor or administrator, it is essential to act in accordance with your duties and uphold the provisions of the deceased's Will. Seeking legal guidance from experienced solicitors specialising in estate litigation is crucial to protect your position and navigate the complexities of defending a Will. If you feel you have inadequately provided for, or unfairly left out of a Will by a deceased person, contact our contesting a Will solicitors in NSW today to ensure a fair and satisfactory resolution for all parties involved.

Szabo & Associates Solicitors have many years experience advising on Wills, Probate, estate administration, estate planning and all related matters. If you need our assistance please contact us on 02 9281 5088 or complete the online contact form.