Defending a Will
Helping Executors and Beneficiaries Navigate Will Disputes
Your Guide to Defending an Estate in NSW
Losing a friend or loved one is never easy … you’re feeling confused, sad, and alone. But, if a Will dispute also arises during this difficult time, your worry and upset intensify even more. This isn’t just an annoying legal matter … it’s something that affects you deeply and personally.
At Falzon Legal, we completely understand what you’re going through. Our expert team are here to bring clear guidance and ceaseless compassion through the whole process of defending a Will. Not only bringing reassurance and comfort to you, but most importantly, ensuring the wishes of the deceased are respected.
Why Defences Arise – Protecting the Voice That Can No Longer Speak
When a person thoughtfully writes their Will, they’re saying, ‘this is how I want my loved ones to benefit after my passing’. But, if these intentions are contended after they’ve departed, or the legitimacy of the Will is questioned, they can no longer argue their case. Therefore, the Executor or beneficiaries must stand up and speak for them.
Who Defends a Will … And Why
Executor Defending a Will in NSW
The Executor is the person who has been assigned by the Testator (the person who wrote the Will), to take on the responsibility of distributing the estate. This legal duty means allocating the estate as the deceased intended in the Will. It’s therefore an inherent responsibility to defend the Will from challenges and contests.
Beneficiary Defending a Will
The beneficiaries have two interconnected motivations to defend. Firstly, they want to protect their due inheritance, which may be completely lost or reduced if the dispute is successful. Secondly, and most importantly, by arguing their own rights, they are supporting the original intentions of the recently passed.
At Falzon Legal, we know that when you’re dealing with loss, the last thing you want is a long legal fight. With unwavering understanding, we take you calmly and professionally through the defence process … and often find a peaceful resolution before the matter gets to the court.
Executor Obligations in Defending the Estate
You must:
- Safeguard the estate’s assets – first and foremost, you must protect all the assets until any contests and challenges are sorted out. Distributing the estate too early can mean you’re personally liable later for any alleged misallocations.
- Always act in the interests of the estate – during the dispute process, your priority is always the estate first. You cannot take sides or make allegiances.
- Answer claims on time – you should reply to all formal contests, challenges, claims or disputes within the stated time frames.
- Gather information – as required by the court, you must collect together any documents that support the deceased’s intentions as outlined in the Will, and evidence that the Will is valid.
- Agree to mediation – often, the court asks for negotiation and mediation first. You should attend any meetings and attempt to reach an agreeable settlement, which can reduce later court costs on the estate.
Since failing to stick to these rules, even accidentally, can lead to additional costs, criticisms, or personal liability issues … take legal advice immediately in the event of a dispute. Falzon Legal’s understanding team will guide you patiently through your duties, ensure you act legally and in the interests of the deceased and the estate.
Don’t Face Will Disputes Alone, Let Falzon Legal Guide You
Beneficiaries’ Obligations in Defending a Will
Whether you’re providing valuable support to the Executor or defending on your own if the Executor is unwilling or unable to, it helps to know what your responsibilities are.
You should:
- Give support to the Executor – where required, give necessary statements, documents, and evidence to the Executor that may help them in defending the Will. This could be letters, photos, or other things that show the deceased’s intentions or how close you were to them.
- Keep communication respectful – don’t allow Will disputes to put a strain on your existing relationships. Maintain dignity, avoid conflicts, and always be respectful.
- Be ready for mediation or court proceedings – if you’re responsible for defending the Will, be prepared to be called to mediation or give an affidavit to the court.
- Arrange legal representation – if there are conflicts of interest, a situation where the Executor is also a beneficiary, or the Executor fails to defend, your own legal representation is crucial.
Worried About a Will Dispute? Gain Reassurance and Advice From Falzon Legal
Will Disputes – Challenging vs Contesting vs Defending a Will
To help with clarity, here are the key ones explained:
Challenging a Will
- Undue influence – someone put pressure on the Will-maker.
- Lack of testamentary capacity – the Testator lacked the mental ability or clarity to write the Will and understand its implications.
- Fraud or forgery – the Will has been amended by someone other than the Testator, or someone else created a fake Will.
Contesting a Will
- Family Provision Claims – an eligible person (spouse, child, dependent, etc) believes that the Will-maker failed in their moral duty to give them sufficient provision for proper maintenance, education, or advancement in life.
- Intestacy claims – even if there’s no Will, or it’s declared to be invalid, someone can still make a Family Provision claim against the intestacy rules estate distribution.
Defending a Will
This process is when the Executor or a beneficiary responds to a challenge or contest in order to safeguard the Will. At its core is the aim of defending the deceased’s wishes as outlined in the Last Will and Testament. It can include:
- Responding to a Family Provision Claim – a Will contest.
- Demonstrating that the Will is valid – a Will challenge.
- Taking part in mediation or negotiation – an alternative to court action.
Whether You’re Contesting, Challenging, or Defending …
Protecting the Estate – Possible Strategies for Defence
Defending Against a Family Provision Claim in NSW (Contest)
This is the most common Will dispute in NSW. It’s when a person thinks they haven’t received enough financial provision from a Will … often a disgruntled child or spouse. They believe the Will is real, but feel that it doesn’t fulfil the deceased’s moral duty to support them.
Our Defending a Contested Will Process
Defend a Will Against Challenge
When a Will is challenged, the claimant is trying to show that the Will cannot be followed by the Executor, as the document itself isn’t authentic or legal. In defending this challenge, it’s usually the responsibility of the Executor to show that the Will is real, using defences that disprove the claims.
How to Defend a Will Contest
When the validity is on the line, you need powerful legal guidance. At Falzon Legal, our focus is on defending a Will challenge … by upholding the original wishes of the deceased. Bringing calmness and reassurance at a difficult time, we stand at your side to do what’s right for you, and the Will-maker.
Defending Wills and Estates – The Process
While each defence is unique, it generally follows this process:
1. Vital Early Legal Advice
Speed is crucial. Typically, the more promptly you get in touch with Falzon Legal, the greater the chances of success. Furthermore, as claims and defences both can be time-limited, we can ensure adherence to the regulations.
2. Examine the Claim, Contest, or Challenge
We explain the claim clearly so you fully understand what is happening and the grounds the claimant is using for the dispute. Then, we look at how strong it is, and consider the best way to mount a defence.
3. Gather Together Relevant Information
Depending on the nature of the dispute, we collect important supporting evidence for the defence … which could include medical reports, financial statements, witness statements, and affidavits.
4. Participate in Negotiation or Mediation
Thankfully, most claims are resolved in mediation or negotiation, not the court. Falzon Legal will act on your behalf, striving for a fair and cost-effective result without formal court proceedings.
5. Attend Court Hearing … if Required
If mediation and negotiation aren’t successful and don’t produce a satisfactory outcome, we will then prepare your defence and represent you in court.
Falzon Legal – Defending Those Who Can No Longer Defend Themselves
When someone passes, it’s painful … you know that you will no longer hear their voice again. And, if a dispute arises, the hurt and confusion are made worse. Now, even their final heartfelt wishes are also at risk of being silenced.
Will dispute lawyers Falzon Legal works relentlessly to ensure the deceased can still speak, and their intentions respected.
With dedication and ceaseless support, we help you do what’s right. Whether you’re a beneficiary wishing to safeguard your rightful inheritance, or an Executor striving to uphold the estate fairly … Falzon Legal will be steadfastly by your side, until peace and justice prevail.
You’re not alone … let Falzon Legal guide you with compassion.
Defending Wills and Estates FAQs
Can an Executor Refuse To Defend a Will?
Yes. Although the Executor is there to act in the best interests of the Estate, they may be reluctant to defend it themselves in the event of a contest or challenge. This could be because:
- They don’t want the stress or headaches.
- There could be a conflict of interest – they could even be the claimant!
- Through ignorance, lack of guidance, or insufficient legal advice, they fail to act correctly.
- The cost of defending the claim is disproportionate to the estate’s value, and it’s their duty to conserve funds.
If this happens, beneficiaries could take on the responsibility of defending the Will. The Executor should obtain legal advice, so as not to become personally liable.
What Are the Costs of Defending a Will in NSW?
The expense of defending a Will depends on numerous factors, which may include:
- Type of claim – whether a Family Provision Claim, a challenge to the validity of the Will, or a different form of dispute.
- Evidence needed – from medical records to affidavits, financial records to witness statements.
- Claim progress – whether it’s resolved at the negotiation, mediation, or court stage.
- Estate size and complexity – substantial or more complicated estates may take more time and money to defend.
- How parties behave – claimants who are open to negotiation usually mean cases that cost less to defend than claimants who are aggressive and stubborn.
At Falzon Legal, we give transparency from day one … indicating the expected costs of defending a Will.
If Someone Contests a Will, Who Pays the Costs of Defending a Will in NSW?
Typically, the costs of defending a Will are paid from the estate, as follows:
- If the Executor acts in accordance with their duties, their legal expenses are addressed by the estate.
- Should a beneficiary take on the role of defending the Will (because the Executor can’t or won’t), they can ask the court for permission to cover the costs from the estate.
- Should the court find that a party has acted unreasonably, it may order them to pay their own expenses.
How Long Does It Take To Defend a Contested Will?
It depends on many things, such as the type of dispute, the case complexity, and how both the defendant and claimant choose to act … whether open to compromise or more adversarial.
A straightforward case that’s resolved early through mediation or negotiation could take 3 to 6 months. Cases that end up in court, involve numerous parties, or require substantial evidence could take from 6 to 18 months.
How Do You Defend Against Someone Contesting a Will?
In NSW, the only way to protect the estate is to show that the recently passed did, in fact, provide suitable provision for the person who is making the Family Provision claim … and that the deceased did not have any further moral obligation to give them more support.
This means that you must give documentary evidence to the Supreme Court that shows the claimant’s current financial situation and their relationship to the person who wrote the Will.
At Falzon Legal, we can show you how to defend against someone contesting a Will, while still ensuring the situation remains calm and dignified.
What Happens When a Will Is Contested?
When someone chooses to contend a Will … usually by making a Family Provision Claim … it’s up to the Executor to defend the estate on behalf of the named beneficiaries.
Knowing how to stop someone contesting a Will through talking and negotiation can save costly court battles. Most commonly, meditation is used to find an agreement. If this doesn’t work, then the matter will be heard in court.
Can a Sibling Contest a Will, and How Do I Respond?
Yes, they can, in some circumstances! They need to be considered as an eligible person under the Succession Act 2006 … meaning that they lived in the deceased’s home, and they were completely or partially dependent on them.
If you’re the Executor, defending a Will contest between or from siblings, first take legal advice. You will need to collect relevant information to show that the claimant was sufficiently provided for, their relationship to the deceased, and you should also tell all the beneficiaries about the claim.