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Defending a Contested Will in NSW

The individual tasked with defending a family provision claim is responsible for maintaining the intentions outlined in the deceased’s Will.

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This responsibility includes a duty to act judiciously, which encompasses efforts to negotiate and potentially settle with the claimant when suitable.

For example, in cases where the estate’s value is modest, it may be more prudent to reach a settlement rather than engage in a legal battle that could deplete the estate’s resources due to additional legal expenses.

In the course of family provision legal actions, the defendant is required to compile and present evidence pertinent to the claim. This evidence comprises:

A comprehensive breakdown of the estate’s assets, debts, and overall net worth, including any potential notional estate assets.
Identification of any individuals who have the standing to lodge a family provision claim.
A response to the claimant’s submitted evidence. (excluding stepchildren unless they can prove dependency on the deceased)
Information regarding the economic and financial status of the Will’s beneficiaries, should they choose to submit such evidence.

There are instances where it might be advisable for beneficiaries to seek independent legal representation during the proceedings. However, they should be aware that this decision carries the risk of each incurring legal expenses.

Defending a Will Challenge in NSW

When a Will’s legitimacy is questioned, the executor appointed by the Will typically steps forward to affirm its legality.

Often, the individual disputing the Will’s legitimacy is someone who would benefit from an earlier Will or through the rules of intestacy.

The common procedure involves the objector filing a caveat to prevent the issuance of a Grant of Probate of the deceased’s estate without prior notification from the Court.

Should the proponent of the Will’s validity commence legal action for probate, the objector becomes a defendant in the case. The objector might also start their own legal claim for a grant pertaining to an alternate Will.

Once legal action is underway, it is incumbent upon the involved parties to present and exchange supporting evidence. The type of evidence required hinges on the specific conditions under which the Will was drafted and the basis for contesting its validity, which could include accusations of insufficient testamentary capacity, lack of awareness and consent, coercion, or deceit.

Contesting a Will’s validity can be an extensive and expensive ordeal. Sometimes, reaching a settlement is advisable, mitigating the hazards associated with the lawsuit.

If you are the designated executor of a Will—or sometimes a beneficiary—and there is a dispute over the Will’s validity, consider reaching out to Champion Contested Wills. Our expertise lies in estate litigation, and we are equipped to help safeguard your interests.

Who Can Defend a Will?

The right to defend a Will is not universal. Typically, the executor or administrator of the estate assumes this role. The approach varies based on whether the claim is under family provision laws or it challenges the Will’s validity.

It is the duty of the designated executor(s) to uphold the Will’s validity. In the absence of an executor, a principal beneficiary is eligible to undertake this defence. Claims for estate provision are usually contested by the named executor(s) or the appointed administrator.

Claims for estate provision are usually contested by the named executor(s) or the appointed administrator. Exceptions occur, for example, when an executor files for provision, they must step down as the defendant. Under such conditions, a beneficiary or an independent administrator often steps in to defend.

In instances where no Will exists, defence against provision claims falls to the appointed estate administrator or a key beneficiary, as dictated by intestacy regulations.

Costs of Defending a Will

Typically, a defendant in family provision legal matters can expect the estate to cover their legal expenses, provided their actions are deemed reasonable. However, if a defendant’s conduct is excessively contentious or otherwise unreasonable, they might not be able to reclaim their costs from the estate.

Therefore, it is crucial for the defendant to not only adhere to the deceased’s Will but also engage in negotiations and make concessions with the claimant when it is suitable.

When a plaintiff successfully secures a provision or an additional provision from the estate, they usually have their party/party costs—also known as costs on the ordinary basis—paid by the estate. These costs represent a fraction of the total solicitor/client costs and can be settled through mutual agreement between the parties or via the cost assessment procedure.

Nonetheless, there are instances where a plaintiff, despite obtaining provision, fails to recover their costs. This could result from the plaintiff’s refusal to accept a prior offer during the proceedings that was equal to or more favourable than the court’s verdict, or it could stem from the plaintiff’s behaviour.

The Court has increasingly expressed concerns regarding legal fees in family provision cases, particularly when the estate in question is modest. In such scenarios, it is becoming more frequent for the Court to issue a capping order, which restricts the cost amount that can be recovered from the estate by any party involved.

If you require representation or legal advice in any matter, contact the team at Champion Contested Wills today!

Important Notice

This article is provided for general interest and informational purposes only. It contains general information and is not tailored to individual circumstances. It does not constitute legal advice and should not be relied upon as such. Always seek the advice of a qualified legal practitioner for specific legal advice tailored to your needs and circumstances. While every effort has been made to ensure the accuracy of the information at the time of writing, applicable laws may change.

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