Who is Responsible for Defending a Contested Will?

The executor of a deceased's estate is responsible for ensuring that the deceased's property is disposed of in accordance with the deceased's will. Therefore the executor of a deceased's estate is generally responsible for opposing any challenge to the will or application for family provision. If there is no executor, an administrator will be appointed by the Court to defend the will.

Accordingly, as a beneficiary under a will, although your rights may be affected, you are not required to personally defend any family provision unless you have also been appointed as executor or administrator.

The Executor

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.

An Administrator

What is an Administrator?

An administrator is a person appointed by the Court to act as the deceased's personal representative. Like an executor, an administrator acts as the deceased's personal representative and is responsible for carrying out the deceased's wishes and defending the estate. Generally, the administrator will be the deceased's spouse or next of kin; although, the Court may appoint anyone they think fit.

When will an Administrator be Appointed?

The Court will only appoint an administrator when there is no executor. This may occur in the following circumstances:

  • The deceased dies without leaving a will.
  • The deceased's will does not appoint an executor.
  • The deceased's chosen executor is not willing or competent to act.

The Beneficiaries

A challenge to a will may affect the rights of a beneficiary under the will. The beneficiaries of a 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.

Although separate representation for the beneficiaries is generally discouraged, separate representation may be appropriate in certain circumstances. For instance:

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