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Defending a Will in Tasmania


Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Adelaide: (08) 8410 0055
Perth: (08) 9321 5505

Alun Hill

In Tasmania, an Executor (where there is a Will) or an Administrator (where there is no Will) is faced with significant legal responsibility if a person:

  • Commences a claim for provision (see Will Contest);
  • Challenges the validity of a Will (see Will Challenge); and
  • Commences a dispute over the administration of the estate.

An Executor or Administrator will need to either liaise with other solicitors to prevent a court application or they may be forced to be involved in Court proceedings. If an Executor or Administrator believes they may potentially be involved in a Will contest or challenge, it is strongly encouraged that they engage a lawyer to obtain advice regarding the contest/challenge, their duties, protection for the beneficiaries and the estate assets. It is also important to be aware of the cost involved as litigation can proceed for several months to years.

As such, this section is a starting point for an Executor or Administrator who is compelled to defend a potential or actual Will contest or challenge.

If you are an Executor or Administrator and you have questions regarding the above, please contact Armstrong Legal as we can provide you with the appropriate advice.



DEFENDING A CONTESTED WILL IN TASMANIA

When an Executor has to defend a Will contest, the Executor’s paramount duty is to uphold the terms of the Will.

When a claim for provision is foreshadowed or commenced, the Executor will need to assess the merits of the claim in light of the needs of the existing beneficiaries and the size of the estate. There are many factors that an Executor must take into account including protecting the beneficiaries.

Once all of the relevant information is obtained from the potential claimant, the Executor may wish to enter into settlement negotiations to avoid the matter going to Court and to preserve the estate from diminishing in legal costs.

There are many factors to consider when defending a contested Will or estate and as such it is prudent for the Executor or Administrator to obtain advice from a solicitor. Please contact Armstrong Legal to discuss how to best defend a Will contest.

DEFENDING A WILL CHALLENGE IN TAS

Similar to the duty of an Executor in defending a Will contest, an Executor has a duty to defend a Will when it is being challenged (see Grounds of a Will Challenge).

To defend a Will challenge, an Executor may need to:

  • Conduct searches and make enquiries to locate all Wills of the Deceased. As there is no mandatory requirement for a Will to deposited in a central Will registry, generally recommended searches to locate a Will include amongst the Deceased's paperwork/possessions, the Deceased's bank, contacting the Deceased's solicitor, contacting the Public Trustee and publishing an advertisement in the newspaper.
  • Obtain a copy of the file of the Will being challenged. It is important to examine the solicitor's file note and the instructions taken at the time the Will was drafted.
  • Obtain the Deceased’s medical records. This may include hospitals that the Deceased was admitted to;
  • Engage an expert witness. This may include the Deceased's doctor, handwriting experts or independent medical experts; and
  • Obtain statements from witnesses. This may include obtaining a statement from the solicitor that took instructions to draft the Deceased's Will and the witnesses to the Will.

As in defending a Will contest, the Executor must be mindful of the size of the estate, the legal costs of defending a Will Challenge and also their duty to protect the beneficiaries.

If you would like to find out more about your duties as an Executor in defending a Will challenge, please contact Armstrong Legal.

WHO CAN DEFEND A WILL?

An Executor of a Will or Administrator of an Estate is the person who must defend a Will contest or a Will challenge.

However, if the Executor intends to contest or challenge a Will, then the Executor must renounce their position and the other executor (if there is more than one) or an independent administrator may need to be appointed. This will ensure that the Executor is not acting in a position of conflict. The independent administrator or in some cases the beneficiary or beneficiaries may need to defend the Will contest or challenge.

If an Executor, who is also a beneficiary to the estate and has foreshadowed a Will contest or challenge and refuses to give up their role as Executor to avoid a conflict of interest, then a beneficiary may apply to the Court to have them removed and an independent administrator appointed.

HOW TO DEFEND A WILL

Testator’s Family Maintenance Act 1912 (Tasmania) (also known as a Will Contest)

An executor of a Will or administrator of an estate has a duty to defend a Will contest if one is made against the estate.

If a person has filed a claim for provision under the Testator’s Family Maintenance Act 1912 (Tas), then the matter will be set down for court hearing (directions hearing).

At the directions hearing, the Court will usually order that the executor or administrator file:

  • Particulars of the estate including a copy of the Will;
  • The names and addresses of those who may be eligible applicants or will be affected by order made pursuant to the application; and
  • Details of the assets and liabilities of the Estate.

The Court may then direct that the applicant serve a notice of the application on those persons that may be affected by the claim. For example, a beneficiary named in the Will.

The matter will then proceed to a mediation ordered by the Court or to mediation agreed to by the parties.

If the matter settles, then a Court order can be obtained formalising the settlement. The Court will only issue an order if it is appropriate having regard to all the circumstances of the case.

However, if the matter proceeds to a Trial hearing, the evidence of the witnesses is submitted by way of affidavit and witnesses are cross examined by the opposing barrister on the content of their affidavit.

Will Challenge

If a person wishes to challenge a Will (see Challenging a Will), the Executor is the person who is required to defend the Will challenge.

If a caveat is filed on the estate to prevent the issue of a grant, then the Registrar will give notice to the Executor.

The person challenging the Will must provide grounds for his or her objections to the Grant (see grounds for challenging a Will) within 28 days of the notice being given by the Registrar of Probates.

Subsequently, the person challenging the Will must commence a court proceeding within 28 days of a statement of objections to the Grant being filed in Court.

If that occurs, then the Executor must file a Notice of Appearance in Court. The Executor will then be named as the Defendant in the Court proceeding.

During the Court proceeding, the Executor may be required to file an affidavit setting out all of the Deceased’s person’s Wills. This is known as ‘an Affidavit of Testamentary Scripts’.

The person challenging the Will must file a Statement of Claim which sets out the particulars of their claim and the facts that they rely upon. The Executor Defendant must file a counterclaim which will include their defence.

Once the defence is filed, then the Court will set the matter down for a directions hearing. At the directions hearing, a timetable will be made for the parties to file affidavit of evidence and for the filing of expert evidence. Subpoenas may need to be issued.

If the matter settles, then a Court order can be obtained formalising the settlement. The Court will only issue an order if it is appropriate having regard to all the circumstances of the case.

However, if the matter proceeds to a Trial hearing, the evidence of the witnesses is submitted by way of affidavit and witnesses are cross examined by the opposing barrister on the content of their affidavit.

Should you have any questions regarding the procedure for defending a Will Contest or Will Challenge, please contact Armstrong Legal.

COSTS OF DEFENDING A WILL

Will Contest

If a Will contest settles at a mediation, then the Executor or another person appointed to defend the contest (i.e independent administrator or beneficiary) is entitled to the legal costs in defending the Will contest.

If a Will contest goes to a Trial, then the costs of the Executor are generally ordered to be paid out of the Deceased’s estate on an indemnity basis (all of the reasonable legal costs incurred by the executor in defending the contest).

However, where an Executor is found to have unreasonably opposed an application beyond the point where it has become clear that the applicant’s claim had merit or the estate is a small one, then the Court may order that the Executor is to pay their own legal costs out of their own pocket and potentially even pay the costs of the other party.

Will Challenge

If a Will challenge settles at a mediation, then the Executor or another person appointed to defend the challenge (i.e. an independent administrator), is entitled to the legal costs in defending the Will challenge.

If a Will challenge goes to a Trial, then the cost of the Executor are generally ordered to be paid out of the Deceased’s estate on an indemnity basis (all of the reasonably legal costs incurred by the Executor in defending the challenge).

Similarly to a Will contest, where an Executor is found to have unreasonably opposed an application beyond the point where it has become clear that the applicant’s challenge had merit or the estate is small in size, then the Court may order that the Executor is to pay their own legal costs and possibly even the costs of the other party.

It is important to understand at what point you should stop opposing a claim and enter into a settlement negotiations. Please contact Armstrong Legal to obtain the advice you require as an Executor to protect yourself in relation to costs.



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.



where to next?

Have you been left out of a Will or treated unfairly? We offer a free assessment of your case and a no win no fee policy. We have a specialist team that deals only in Wills & Estates servicing NSW, VIC, QLD, ACT, SA & WA. The law relating to Wills and Estates can often be complex and confusing so we encourage you to make contact with our team.

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Adelaide: (08) 8410 0055
Perth: (08) 9321 5505