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Defending A Will in VIC


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

Paul Traianedes

An executor or administrator may need to defend an estate against the following actions:

  • Challenge to the validity of a Will;
  • Claim for proper and adequate provision from an estate (family provision claim) pursuant to Part IV of the Administration and Probate Act 1958;
  • Challenge as to the construction of terms of a Will;
  • Administration of estate assets or a trust.

Although the above is not an exhaustive list, the responsibilities of an executor and administrator to protect and manage the estate in the interests of beneficiaries in such matters is complex and difficult to handle.

Many executors and administrators tend to be family friends, husbands, wives, partners who have had no experience in estate management and do not know what to expect. With the right advice, we can assist you throughout this process and advise you on the matters you need to take into consideration.


DEFENDING A CONTESTED WILL IN VICTORIA

Family Provision Claims (Part IV of the Administration and Probate Act 1958)

The primary duty of an executor is to uphold the terms of the will against any challenge to an estate. However, and executor must also assess the merits of such a challenge, or challenges where there are multiple claimants and determine whether it is in the interests of the beneficiaries to negotiate a settlement without resorting to litigation, or defend the estate in Court. Some of the factors to be considered by an executor may include but are not limited to the following:

  • The financial size of the estate;
  • The legal costs incurred by defending against a claim, or claims;
  • Where minor beneficiaries are involved, the costs and appropriateness of any settlement reached. In such cases, the compromised reached between the parties will require the approval of the Court in that the settlement is in the interests of the minor beneficiaries. Minor beneficiaries will need to be separately represented which also adds to the costs of any proceedings;
  • The evidence available to defend or reject a claim;
  • The financial needs of the claimant and their ability to properly and adequately provide for their own needs moving forward;
  • Details of the relationship between the Deceased and the claimant;
  • Other circumstances taken into consideration by the Court pursuant to sections 91 and 91A of the Administration and Probate Act 1958.

DEFENDING A WILL CHALLENGE IN VICTORIA

When the validity of 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 or on intestacy.

A caveat may be lodged by a person seeking to dispute the legitimacy of the will. This is usually done after death, but before probate is applied for. Once the executor applies for probate, they are given notice of the existence of a caveat against the application. The person who has lodged the caveat has 30 days from the date of being notified that an application for probate has been made, in which to file a statement of objections to the probate application. In such matters, the person applying for the grant of probate is known as the Plaintiff and the person who has lodged the caveat is known as the Defendant, due to the Plaintiff seeking to obtain a grant of probate.

It is up to the Plaintiff and Defendant to produce evidence in support of their respective contentions that the will should, or should not, be “proved” to the Court for probate. Where a defendant contends that the Will was produced as a result of undue influence, duress, lack of testamentary capacity or fraud, the onus is on the Defendant to provide evidence wholly supporting those contentions. If no evidence is produced, or is speculative at best, the Defendant is very likely to fail in their challenge.

Where cases involve the testamentary capacity of the Deceased in making his or her will, the evidence will mainly rest on the Deceased’s medical reports and records available as at, or around the time the will was made. This may involve issuing subpoenas for production of records and discovery which can become time consuming and considerably costly. In many circumstances, the parties ten to reach a settlement in relation to the grant of probate and conditions on which it is granted.

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.

WHO CAN DEFEND A WILL?

Not everyone is entitled to defend a Will. In most cases, the executor or administrator of the estate is the person to do so. The process is different depending upon whether a claim is being made under Family Provision legislation or whether the validity of the Will is challenged.

The named executor(s) should defend the validity of the Will in accordance with his or her duties. If there is no executor to defend the Will, then the beneficiary with the greatest share or interest may do so.

The named executor or appointed administrator usually defends against a claim for provision out of an estate. However, this is not always the case. If an executor becomes the claimant, he or she can no longer act as an executor/defendant. In such circumstances, it is usually a beneficiary or an independent administrator who act as defendant.

If a deceased person dies without a Will, then the appointed administrator or the beneficiary with the greatest share may defend the claim for provision.

It is the role of the named Executor(s) to defend the Will and wishes of the deceased. However, where an appointed Executor who is unable to, or is unwilling, or is incapable of administering an estate and defending a Will, a person with an interest in the estate can make an application to the court to replace the executor.

If an appointed Executor contests the estate of the deceased, he or she will not be able to defend the Will and the Estate. In that situation, a beneficiary or independent administrator can act as the estate defendant.

HOW TO DEFEND A WILL

Where an individual makes a claim for a share of an Estate by contesting the deceased’s Will, and the parties are unable to settle the claim out of court, the individual claimant may initiate court proceedings. When proceedings are issued in the court Registry, court documents will be served on the Executor(s) of the Estate or on the Executor’s solicitor. The Executor(s) will be the named defendant in the proceeding.

The Executor must then prepare, file and serve the following evidentiary documents in the Court Registry in response to the claim, namely:

  • an affidavit setting out the assets, liabilities and the net value of the estate;
  • an affidavit setting out the reply to the claim lodged by the Applicant;
  • an affidavit setting out the financial and other relevant information of the beneficiaries named in the Will;
  • any other material document(s) required under the Rules of Court or as directed by the Court.

An affidavit is a written statement recorded under oath or affirmation for use as evidence in a court of law.

The further conduct of the proceeding will directed by the Practice Court, and the Civil Procedure Rules.

COSTS OF DEFENDING A WILL

In most cases, the costs of defending against a family provision claim can be recovered from the estate, provided the actions of the defendant are reasonable and justified in the circumstances. Whilst upholding the terms of the Will, is the role of the executor, they must be reasonable and willing to negotiate a settlement to avoid unnecessary costs and wastage of the assets of the estate in the interests of the beneficiaries.

The recent amendments to the Administration and Probate Act which came into force on 1st January 2015, are intended to deter claims without merit that are otherwise frivolous and vexatious.

In the event that the Court forms the view that an applicant’s claim has no foundation or merit, the Court may order the Applicant to pay the costs of the defendant and/or the costs of the proceedings.

The Courts have an unfettered discretion on the question of costs in contested Estate litigation cases. A court may:

  • cap a party’s costs;
  • refuse a successful claimant’s costs (where affidavits are poorly drafted);
  • refuse to make a costs order out of the Estate pool; or
  • make a full costs order out of the Estate for the successful Applicant.

In a recent decision in 2014, (Briggs v Mantz (No. 2) VSC), Justice McMillan stated “when a plaintiff embarks on a Part IV claim (contested estate claim), he or she can no longer assume an entitlement to have costs paid out of the Estate, nor can a plaintiff assume that he or she will not be ordered to pay costs”.

At Armstrong Legal, we specialise in Estate litigation. If you are defending or contesting a deceased’s Estate, we have the experience to advise you on the merits of your claim, and on matters relating to costs.





where to next?

Have you been left without adequate provision from a deceased estate? 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

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