A Will outlines your Wishes concerning the Disposal of your Property after your Death and, provided that your Will is Valid, your Wishes will be Legally Enforceable. But what happens if your Will is Contested? Who is Responsible for Defending a Contested Will?

The Executor

The executor of an estate has a duty to uphold the deceased’s will and defend the estate. Accordingly, when there is a challenge to a will, the executor of the will is responsible for defending the contested will.

What is an Executor?

The executor is the person or organisation nominated by the deceased's will to be the deceased’s personal representative.

The executor is responsible for managing the deceased’s estate and ensuring that the deceased’s wishes are carried out. If you are named the executor it is recommended that you seek legal advice.

What Does the Executor Have to Do?

The executor has a range of duties and responsibilities, including:

  • Applying for probate.
  • Collecting the deceased’s assets & discharging the deceased’s liabilities.
  • Managing the deceased’s tax and superannuation obligations.
  • Distributing the estate to the beneficiaries.
  • Defending the estate in any legal proceedings.

Role of the Executor in Family Provision

When a family provision claim is made, the executor is responsible for defending the family provision claim and/or negotiating a compromise with the applicant. The executor’s costs of defending the application will be paid out of the estate except where they are considered to have acted unreasonably, for example, by rejecting multiple reasonable offers or incurring excessive legal costs.

The executor, in defending a family provision claim, should:

  • Preserve the estate. In this the executor should refrain from distributing the estate if there is a pending family provision claim; although, they may discharge the debts and liabilities of the estate.
  • Assist the court. The executor is obligated to provide the court with all the relevant evidence including the assets and liabilities of the estate, the expenses already incurred such as funeral expenses, tax liabilities, or unpaid bills, and the value of any distributions made to the beneficiaries.
  • Notify eligible applicants. The executor is required to notify any other potential family provision applicants where a claim is made.

The Beneficiaries

A challenge to a will may affect the rights of a beneficiary under the will. The beneficiaries of the will are the individuals who are to receive a gift or benefit under the will. Thus, for example, a successful family provision claim may reduce a beneficiary’s entitlement under the will.

Do the Beneficiaries Need Legal Representation?

The beneficiaries of a will are not responsible for defending a family provision claim except in circumstances where they are the executor. As the executor is expected to defend the will and provide the court with all the relevant evidence, the beneficiaries will not generally require separate representation but may be separately represented if they wish.

Separate representation for the beneficiaries is discouraged; however, in certain circumstances separate representation may be appropriate. For instance:

  • Where the beneficiary is entitled to a large inheritance under the will.
  • Where the executor is a beneficiary and is intending to apply for family provision themselves.
  • Where the interests of the executor and the beneficiaries are in conflict.

Cases & Articles

Preventing a Will Contest: Transferring Property Prior to Death
Mediation in Family Provision
A Lawyer’s Duty to Advise on Potential Family Provision Claims

DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.