Defending a Will in QLD

Defending a contested will is one of the duties of an executor. An executor is required to represent the interests of the estate, which means they have a duty to defend a contested will against any applications, including family provision (or contested will) applications. The role of an executor in defending a contested will is to gather and present evidence which protects the interests of the beneficiaries and supports the will being upheld. For example, the executor may be required to collect evidence regarding (but not limited to) the following;

• Any reasons provided by the deceased for omitting or providing less to a person who is eligible to contest their will;
• Details of the relationship between the deceased and the person contesting the will, particularly of any major dispute or estrangement; and
• Evidence regarding financial contributions the deceased made to the person contesting the will before they passed away.

We recommend that if you need to defend a will you seek legal advice about what you are required to do.

Similarly to the obligation of an executor to defend a contested will, an executor, or proposed executor, also has obligations in defending a will challenge. The role of an executor in defending a will challenge is to gather and present evidence which protects the interests of the beneficiaries and supports the will being upheld. For example, the executor may be required to collect evidence regarding (but not limited to) the following;

• Details, records and the professional opinions of medical practitioners treating the deceased at or around the time they prepared their will;
• The solicitor’s file regarding the preparation of the deceased’s will; and
• Evidence of witnesses to the will.

If you are named as an executor and are involved in defending a will challenge, we recommend seeking appropriate legal advice about what is required to defend a will.

The named executor, or proposed executor of an estate is responsible for defending a will. In the event that an executor does not wish to take up their appointment, there is a list of priority for other parties who may be appointed in their place with the authority to administer the estate. If the executor is the person contesting or challenging a will then another person can be appointed to defend the will.

If you are an executor who receives notice that a person intends to contest the will, you as executor, have a duty to defend the will.

When you receive notice that a will is to be contested, you should contact a lawyer as soon as possible and obtain advice about how best to defend the will. It will be easier for your lawyer to provide you with timely advice if you provide them with a copy of the will and any documents found with the will, details of the assets of the estate and a summary of the facts of the matter.

Once you have obtained legal advice, your solicitor will advise you as to the evidence which you will need in order to defend the will. The evidence depends upon the type of claim that you must defend and also the specific facts of your case. The evidence required might include:

• Documents proving the value of the estate assets and liabilities (such as property valuations and bank account or loan account statements);
• Statements from yourself and other people about the relationship between the deceased person and the person who is contesting the will;
• Statements from the beneficiaries of the will about their relationship with the deceased person and/or their financial position and health;
• Medical records of the deceased (these are particularly important if you are defending a will where the validity of the will itself is being challenged);
• The file of the lawyer who prepared the will and/or statements from the witnesses to the will (these are particularly important if you are defending a will where the validity of the will itself is being challenged);

Your lawyer can assist you to obtain the evidence which is required.

An executor who is defending a will should advise the beneficiaries that the will is being contested. Your lawyer should be able to assist you with this step.

When an application to contest a will in Queensland is filed in the Court, there is a Practice Direction which applies. A Practice Direction is a document which sets out rules which the parties to a proceeding must follow. The Practice Direction in relation to contesting and defending a will lists the steps that the executor must follow in order to defend the will.

We understand that when an executor receives notice that a will is to be contested, it is often an emotional and stressful experience. It is important that the executor obtains prompt legal advice to ensure that they comply with their duties. An executor should not discuss the case or respond to any correspondence without first obtaining legal advice. When defending a will it is very important that the executor not take any steps to distribute the estate unless they have received contrary legal advice.

If you are an executor facing the prospect of defending a will, or you have a question, we encourage you to call us on 1300 170 288. Most of our work for executors defending a will is done on a deferred payment basis so that our fees are paid directly out of the estate of the deceased and the executor is not left personally out of pocket.

Many executors are concerned about the costs of defending a will. Unfortunately these costs of defending a will can be significant and it is understandable that executors often are unwilling to pay these costs out of their own pocket.

When a person acts as an executor of a will, they are acting as a trustee and they have all of the rights that trustees ordinarily have in relation to the assets of a trust. In particular, executors are entitled to have their proper expenses of administering an estate paid out of the funds of the estate. This is called the executor’s right of indemnity.

If an executor is required to defend a will, the executor’s legal costs of the litigation are usually paid out of the assets of the estate, so that the executor is not left personally out of pocket. This entitlement is subject to the costs being proper expenses of the estate and reasonable in all the circumstances.

In order to rely upon their right of indemnity in relation to the costs of defending a will, the executor should seek legal advice about the steps which they are required to take. It is important that the executor defends the will for the benefit of the people who are entitled to share the estate and that the costs incurred are not excessive.

If you are an executor facing the prospect of defending a will, or you have a question, we encourage you to call us on 1300 170 288. Most of our work for executors defending a will is done on a deferred payment basis so that our fees are paid directly out of the estate of the deceased and the executor is not left personally out of pocket.