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Defending A Will

In South Australia, only the legal personal representative of the Deceased’s estate can defend the Deceased’s last Will. Therefore, the executor would be responsible for defending the Will in situations where an action is brought against the estate.

There are two major actions that can be brought against the estate, being contesting a will (claim for provision or further provision) or challenging the validity of a Will.

If you are the executor of a Will and have been given notice of a claim, contact our office for a case assessment.

Defending a Contested Will in SA

Pursuant to the Family Provision ACT 1972 (WA), there are certain people who the law recognises as eligible to contest a will if the deceased has failed to make provision for them in his or her will. There are certain matters that the Court will consider when assessing these claims. The applicant must demonstrate that the deceased person had a moral duty to provide for them and that the deceased failed to make ‘adequate provision’ for the applicant.

It is the Executor’s role to uphold the terms of the deceased’s will, and in cases where the will has been contested, this means that the Executor may have to attend Court to do so.

In Western Australia, an applicant has 6 months from the date that probate has been granted to Executor in order to make a claim with the Supreme Court of Western Australia.

Once the Executor has been notified of the applicant’s intention to make a claim, they cannot continue to distribute the deceased’s estate. If the Executor does make a distribution having received the applicant’s notice, then they may be personally made to account to the applicant for the distributed assets.

The Executor will be required to assist the Court to asses the claimant’s case by providing affidavit evidence regarding the value of the deceased’s estate and details about other beneficiaries or eligible persons.

After the evidence of the parties has been exchanged, the matter may be set down for mediation and the Executor will be required to attend Court with the estate solicitor to attempt to resolve the applicant’s claim by negotiation. Most matters settle at mediation and the Executor proceeds to administer the estate based on the orders which have been made at mediation.

If the matter does not resolve at mediation, it will be listed in Court to be heard by a Judge. The executor will instruct the estate solicitor regarding further evidence which must be filed to prepare the matter for hearing. When the Court has made a decision regarding the applicant’s claim, the Executor will administer the estate in accordance with the orders which have been made. In rare circumstances, the Executor will continue to instruct the estate lawyer if the applicant appeals the Court determination.

The possibility of being involved in litigation can be daunting. As each case is different, it is helpful if you obtain legal advice regarding the circumstances of your matter.

Defending a Will Challenge

As in all Australian states, the primary role of an executor is to uphold the terms of Will and defend against spurious claims. However, where a claim is brought by an eligible person under Section 6 of the IFPA, the executor must obtain legal advice as to the merits of that claim and assess whether that claim should be settled as quickly and as cost effectively as possible in the interests of all beneficiaries named under the Will.

Some of the considerations an executor needs to assess when determining the merits of a contest include, but are not limited to:

  • The nature and extent of the relationship between the claimant and the deceased;
  • The evidence available to support or reject the claim;
  • The size of the provision being sought by the claimant, their financial position and needs;
  • The size of the estate;
  • The legal costs of defending against a claim and the impact on the residue of the estate for distribution;
  • Where there are minor beneficiaries are involved, whether:
    • The impact of the settlement does not have a significantly adverse effect on the minor’s share of the estate;
    • The costs of having the compromise approved by the Court. This is a mandatory requirement where a settlement involves a minor or persons subject to an administration order or disability. In these situations, the minor beneficiary will require independent legal representation and cannot be represented by a beneficiary, the executor or a solicitor acting for other beneficiaries, which would be seen as a conflict of interest.

Whilst there are no clear statutory guidelines regarding the type of evidence the Court is willing to consider to establish whether or not a claim has merit, it is recommended that a claimant produce as much evidence as possible to support their claim. The evidence must be beyond the ability to suggest an “inference” of a relationship or financial need and actually demonstrate:

  • That there was continual contact with the deceased up until the date of death, or
  • Reasons why the deceased took active steps to avoid contact with the claimant and evidence of the claimant to show reasonable attempts to re-establish contact (estrangement);
  • Financial records showing a lack of funds, financial hardship or difficulties meeting daily needs, or future medical and contingent personal needs;
  • Photographs, letters / emails / social media printouts showing a strong relationship with the deceased up until the date of death.

There are some circumstances where a claimant has avoided contact with the deceased for good reason which may negate the issue of estrangement. These can include, but are not limited to:

  • A history of physical and emotional abuse, including sexual assault by the deceased against the claimant;
  • Any medical evidence (reports / statements) showing the impact of the abuse perpetrated by the deceased against the beneficiary;
  • Any supporting witness statements from family or friends who witnessed the abuse first hand.

In these situations, the Courts have been known to uphold the deceased’s moral duty to make provision from their estate to such claimants (usually children of the deceased). However, each case must be assed individually as no two estrangement cases are similar.

If you are an executor of an estate or a claimant wanting to know the merits of your possible claim, please contact us today to discuss how we can assist you.

Who can Defend a Will?

The right to defend a Will rests with the person who is the named Executor in the Will.

However, if the Executor intends to bring a claim against the deceased’s estate, the Executor must renounce their position and appoint an independent administrator to handle the estate. This avoids a potential conflict of interest arising, particularly where there are multiple claims being made against the estate.

If the Executor is not a beneficiary or a person who is entitled to bring a family provision claim, it is the role of the Executor to uphold the terms of the Will where possible. However, it is also the role and duty of the Executor to ensure that the estate assets are not unnecessarily wasted in legal costs defending against strong family provision claims. In such circumstances, the Executor must obtain legal advice to determine how best to resolve such disputes and minimise legal costs, which should involve the input of any beneficiaries. The Executor could be held personally liable for any financial loss suffered by a beneficiary of an estate, if that beneficiary has not been afforded the opportunity to have any input into the settlement process.

If an Executor, who is also a beneficiary to the estate and is contemplating bringing a claim against the estate, refuses to step down from their role to avoid a conflict of interest, a beneficiary or beneficiaries may apply to the Court to remove the Executor and appoint an independent administrator. In most cases, an Executor who finds his, or herself, in a position of conflict will usually step down and obtain independent legal advice.

How to Defend a Will?

As in all states, it is the role of the Executor to defend any action brought against an estate.

If legal proceedings are issued against the estate, they will be issued against the Executor in that capacity. The proceedings will not be issued personally against the individual who is named as the Executor, unless allegations of mishandling estate funds or assets are raised against the Executor. In some cases, family provision claims are resolved without the parties having to resort to legal proceedings and Terms of Settlement, or a Deed of Family Arrangement may be entered into, bring the matter to a conclusion. When legal proceedings are issued, 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 position 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.

Once the parties have submitted their respective affidavits or position papers to the Court and on each other, a mediation will be scheduled to try and assist the parties to resolve the dispute. A mediation is a confidential negotiation which takes place between the parties and which is usually managed by a barrister who is an accredited mediator and the barristers for the respective parties. Mediation is conducted on what is known as a “without prejudice” basis. The reason for this is to encourange the parties to freely and openly raise all the issues of their respective cases, without fear of them being referred to in Court, should the matter not settle and go to a trial. In most cases, claims are resolved at mediation as most parties wish to avoid the costs of a trial which could financially damage the value of the estate and the shares of beneficiaries and the claimant.

Costs of Defending a Will

Normally legal costs would be borne from the estate of the deceased, unless the executor incurs unreasonable legal costs throughout defending the claim. In defending a claim made by an applicant, an Executor should obtain legal advice at the earliest opportunity in order to defend the claim.

If you require assistance in defending a claim, contact our office on 1300 038 223 for further information.

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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