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Defending a Will in NSW

There are many ways in which an executor or administrator may find themselves defending an estate. The validity of the deceased’s will may be challenged for a variety of reasons, a claim may be made under family provision legislation or there may be a dispute over the administration of the estate.

This section sets out some of the basic information to assist you to understand your position and the options available to you.

If you find yourself defending, or possibly defending, against a challenge or claim, there are a number of things that must be taken into consideration:

Defending a Contested Will in NSW

It is the duty of the person who is defending 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 instance, 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 NSW

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.

The usual process is for the challenger to lodge a caveat against a grant being made in respect of the deceased’s estate without the Court first giving notice to them.

If the person trying to prove the validity of the will then initiates proceedings seeking a grant of probate the challenger will be joined to the proceedings as a defendant. The challenger 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).

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.

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 correct person to do so. The process is different depending upon whether a claim is being made under family provision legislation or where the validity of the will is being challenged.

The named executor(s) is the person who should defend the validity of the will, in accordance with their duties. If there is no executor to defend the validity of the will, then a major beneficiary may do it.

The named executor(s) or appointed administrator usually defends against a claim for provision out of an estate. However this is not always the case. For instance, if the executor is making a claim for provision they cannot also act as the defendant. In such circumstances it is usually a beneficiary or independent administrator who act as a defendant.

If the deceased leaves no will, then the person who would defend against a claim for provision would be the person who is appointed administrator of the estate or a major beneficiary under the rules of intestacy.

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.

The process of defending a will depends on the nature of the proceedings. Ie whether the validity of the will itself is being challenged or whether someone is seeking provision out of the estate pursuant to family provision legislation.

Where the validity of a will is in dispute, the executor named in the will is often the plaintiff in proceedings. This quite often confuses people at first. The reason for the executor being the plaintiff is that the executor is the person who seeks to prove a will and will be the person initiating proceedings. Where a person challenges the validity of that will, they will be joined as defendants to the proceedings.

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.

At Armstrong Legal 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 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 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 solicitor/client costs and 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 accept an offer earlier in the proceedings which was as good as or better than the court’s determination. Or it may be due to the plaintiff’s conduct.

The Court has shown increased concern about legal costs in family provision proceedings, especially where the estate is relatively small. In such circumstances, it has become more common for the Court to make a capping order which limits the amount of costs a party or parties may recover out of the estate.

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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