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Defending a Will

It is the duty of the person who is defending a will against a family provision claim to uphold the provisions of the deceased’s will. However, in doing so they must act reasonably, including seeking to negotiate and compromise with the claimant where it is appropriate. For example, if the estate is relatively small it may be appropriate to compromise rather than proceeding to a hearing and causing the estate to incur further legal costs.

The defendant in family provision proceedings will file and serve evidence that is relevant to the claim, including:

  • Details of the assets, liabilities and net value of the estate and potential notional estate;
  • Details of any persons who are eligible to make a family provision claim;
  • Evidence in reply to the evidence that has been filed and served on behalf of the claimant; and
  • The material and financial circumstances of the beneficiaries under the deceased’s will, if they elect to file and serve that evidence.

In some circumstances it may be appropriate for beneficiaries to be separately represented in the proceedings, however, they would do so at the risk of bearing their own legal costs.

Defending a Will Challenge in the ACT

When the validity of a will is challenged, it is usually the executor named in that will who seeks to prove its validity. The person challenging the validity of the will is usually a beneficiary under a previous will which they seek to prove or under the rules of intestacy.

The usual process is for the person who disputes the validity of the will to file a caveat in the Supreme Court of the Australian Capital Territory pursuant to Rule 3066 of the Court Procedure Rules 2006 against a grant being made in respect of the deceased’s estate without the Court first giving notice to them. It should be noted that caveats lapse after 6 months of being filed in the Court unless it is set aside or withdrawn. If a caveat lapses and the caveator wishes for it to continue to be in force then it will need to be renewed by filing a new caveat.

The person who seeks a grant in respect of the disputed will may apply to have the caveat set aside. Otherwise, they are required to initiate proceedings seeking a grant of probate and join the caveator as the defendant in those proceedings. The caveator may also initiate a claim of their own seeking a grant in respect of a different will.

Once proceedings are commenced it is a matter for the parties to file and serve evidence in support of their positions. The nature of the evidence will depend on the circumstances surrounding the creation of the will and the grounds relied upon in challenging the validity (such grounds may include lack of testamentary capacity, lack of knowledge and approval, undue influence and fraud). In most will validity disputes, evidence of the deceased’s mental capacity will be relevant, requiring expert evidence to be obtained by the parties.

Challenging the validity of a will can be a long and costly process. In some circumstances settlement between the parties is appropriate and will alleviate the risks of the litigation and avoid the estate from being diminished by legal costs.

If you are the named executor of a will (or in some circumstances the beneficiary) and the validity of the will is in dispute please contact Armstrong Legal. We specialise in estate litigation and we can assist you to protect your position and guide you through the process.

Who Can Defend a Will?

In the ACT, the appropriate person must Defend a Will. Usually, the appropriate person is the executor or administrator of the estate, however, it may depend on whether a Will is being Contested or Challenged.

When someone has made a family provision claim (that is they are Contesting the Will), then usually the executor or administrator is the most appropriate person to defend the Will.

If someone is Challenging the Will, the executor is the most appropriate person to Defend the Will or the major beneficiary (if there is no executor).

However, if the executor is the one challenging the Will, they are unable to also defend it. Therefore another person must be appointed the defendant in the proceedings.

Once the proceedings are concluded, the executor may finalise the administration and distribution of the estate pursuant to the deceased’s Will and court orders (if any).

Should you have any questions regarding who can defend a Will, please do not hesitate to contact our experienced team.

How to Defend a Will

It is usually the executor named in a will who is the appropriate person to defend it, although in some circumstances a beneficiary or independent administrator will take the role of defendant.

Broadly speaking there are two main ways in which a person may find themselves defending a will:

  • Where someone is disputing the validity of the will (for example due to lack of testamentary capacity, lack of knowledge and approval, undue influence or fraud); or
  • Where someone is contesting the will pursuant to the Family Provision ACT 1969.

The process of defending a will depends on whether the validity of the will is in dispute or whether the claim is made under the Family Provision ACT 1969. In some circumstances, proceedings will involve both a will validity dispute and a claim under the Family Provision ACT 1969.

Where the validity of a will is in dispute, the executor named in the will is often required to initiate the proceedings and where a person challenges the validity of that will, they will be joined as a party to the proceedings. In many cases, before proceedings have been commenced, the person who disputes that validity of the will has already filed a caveat against a grant being made in respect of the estate. While that caveat is in force the executor who seeks to obtain a grant must do so by initiating proceedings and joining the caveator as a party.

In most family provision claims the executor will be joined as a defendant to the proceedings. It is then a matter for the executor to file and serve evidence of the nature of the estate, the financial and material circumstances of the beneficiaries and (where appropriate) evidence in reply to the evidence of the claimant. The defendant’s role in family provision proceedings is to defend the will and seek to uphold its terms while also acting reasonably and settling proceedings if it is reasonable to do so.

Regardless of the nature of the proceedings, parties should always at least consider settlement as an option because it may save the estate legal costs in the long run and also alleviate the risks of litigation.

At Armstrong Legal, we specialise in estate litigation and we can assist you to defend a will no matter what the type of dispute.

Costs of Defending a Will

Generally speaking, a defendant in family provision proceedings will have all of their legal costs paid out of the estate as long as they have acted reasonably. In some cases, where the defendant has been overly litigious or otherwise acted unreasonably they may not be successful in recovering their costs out of the Estate. Accordingly, it is very important that the defendant not only uphold the provisions of the deceased will but also attempt to negotiate and compromise with the claimant where appropriate.

In most cases where a plaintiff (the person making the claim on the estate) is successful in obtaining provision, or further provision out of the estate, their party/party costs (also referred to as costs on the ordinary basis) will also be paid out of the estate. Party/party costs are a portion of a legal party’s total legal costs. The amount of party/party costs may be agreed between the parties or determined by the costs assessment process.

However in some cases the plaintiff, although successful in obtaining provision, will not be successful in recovering their costs. This may be due to the plaintiff failing to do better than an offer that was made earlier in the proceedings or it may be due to the plaintiff’s conduct.The links to the above topics will provide you with some important information to assist you. If you are an executor or administrator and proceedings have been threatened against you then please contact Armstrong Legal. Our Contested Estates team specialise in all forms of estate litigation and can provide you with the advice you need.

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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