Defending a claim against an Estate

Defending a Will is split into three categories.

• Defending the validity of a Will on the grounds of either; lack of mental capacity, lack of knowledge and approval, undue influence, fraud or forgery.
• Defending a family provision claim.
• Defending a Will dispute possibly involving the rule of ademption, construction of a Will, the forfeiture rule, power of attorney dispute, administration and distribution dispute or revocation of probate.

The only person/s entitled to defend the validity of a Will is the executor/s or other person appointed by the court as administrator for the purpose of the challenge proceedings.

If the Will being challenged is found to be invalid, the next earlier Will is looked at. If that Will is valid, Probate is granted. If that Will is invalid, then the court will look at the next earlier Will, and so on.

The rules of intestacy apply which means family members listed in order of priority receive the assets of the Estate – spouses and children being first in line. If you are in this situation, you may need to defend any challenge made against the Estate by other persons.

Not really. However, if you were to delay applying for Probate or defending a challenge beyond what the court considered reasonable, the court would simply allow someone else to be appointed administrator.

Yes – in New South Wales, applicants have 12 months from the date of death to file a claim with the Supreme Court.

Probate is the document granted to the executor when the Will is valid. Probate granted to an executor/s is proof that the Will is valid and proof that the executor/s is entitled to administer the Estate and distribute the assets in the terms of the Will. Your role as executor is to defend the proposition that you are entitled to a Grant of Probate.

If the executor has done nothing wrong before or during the proceedings, the legal costs will be paid by the losing party, being either the challenger or the Estate. If correct procedures are followed, the executor will not be responsible for any costs personally. Costs vary depending upon the complexity of each case.

Only if you have evidence to submit to the court as a witness. This is different to contesting a Will (Family Provision Claims) where mostly the parties are required to attend mediation or court. However, as executor and defendant, you are required to be in court to hear the proceedings.

Not necessarily, however, most of the time we do eventually meet. The first steps are usually achieved by phone, email or Zoom, and our first meeting will take place whenever you wish. Sometimes travelling to a solicitor’s office can take unnecessary time and money.

This depends upon the complexity of the case, but possibly 6 to 12 months for settlements to be approved by the court and probably 12 months to 2 years or more for a court hearing.

The court looks at all the available evidence regarding the mental capacity of the Will maker and the conduct of family members, friends or carers, as well as evidence from lawyers, doctors and forensic specialists.