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DEFENDING WILLS DISPUTES IN NSW

In some instances, an Executor or Administrator may need to defend the assets of the Estate. `Interested persons` could challenge the Validity of the deceased’s Will. For example, a disinherited child or partner of the deceased could make a Family Provision claim on the Estate.


City Lawyers and Consultants could assist in defending the assets of the Estate against a challenge or claim.

It is important to note that if the Estate is small (under $500,000)it would be advisable to reach an agreement early to minimise dissipation of the estate's assets legal costs and disbursements (which include the Court fees).

The Executor/Administrator will provide information and statement (Affidavit)about the following:

  • Information about the assets, liabilities and Estate's/Notional Estate's value
  • Information about orher persons who could be also entitled to make a Family Provision claim;
  • Information and evidence in reply to Plaintiff's statements(Affidavits)
  • Both parties would exchange documents and financial records to establish financial needs of the parties.

If there are several siblings who wish to make Family Provision claims, in some circumstances, costs could be minimised if all are represented by one law firm. However, sometimes it is not possible as there may be competing claims on the same Estate.

The `interested person` who challenges a will is often a beneficiary under a previous Will or a current Will. The Executor or Administrator has to prove that the will is valid.

The `interested person` will file a caveat to prevent the Grant of Probate order by the Court.

The person who wishes to prove that the Will is valid, files a case in Court asking for a Grant of Probate. The person who says that the will is NOT valid, may need to file a claim in Court requesting Grant of Probate of a different Will (for instance, a previous Will).

Both parties have to file their statements (Affidavits) and evidence. The documents proving the party's case have to be served on the other party. The grounds to challenge the validity if the Will are: lack of MENTAL CAPACITY (testamentary capacity) lack of knowledge and approval UNDUE INFLUENCE FRAUD/FORGERY

City Lawyers and Consultants could assess the merit of challenging a Will claim.

We specialise in Challenging Wills and Estates and we could assist you to make or defend a claim.

Please note that not everyone is able to defend a Will. The Executor or Administrator of the Estate can generally defend the claim made against the Estate.

The Executor's duty would be to defend the validity of the will. If there is no Executor, in some instances, the beneficiary could defend it.

In majority of cases, the Executor or Administrator usually defends the Estate against the Family Provision claima. In some cases, the Executor could make a Family Provision claim and then a beneficiary or independent Administrator could act as a Defendant.

In cases, where the deceased died without a Will, the claim for Family Provision would be defended by Administrator of the Estate or a beneficiary under the rules of intestacy.

The Executor named in a Will would be defending the assets of the Estate.

The process of defending a Will is different in each particular case. For example, the validity of the Will itself could be challenged or the child or partner of the deceased could make a Family Provision claim.

If the validity of a will is questioned, the Executor applies to the Court (as is often the plaintiff in proceedings. This quite often confuses people at the plaintiff) to prove that the Will is valid.

In the majority of Family Provisions claims made by, for example, the disinherited child or partner of the deceased, the Executor will become a defendant in a case.

In most cases, a defendant in Family Provision claim will have their legal costs and disbursements paid out of the Estate.

If a plaintiff is successful in getting a Family Provision out of the Estate or further Family Provision, their ordinary costs will also be paid out of the Estate. Ordinary (Party/party costs)are solicitor/client costs. In most cases, they may be agreed between the parties or determined by the Costs Assessor of the Court in a costs assessment process.

Sometimes, the plaintiff could get a Family Provision but could not recover all of its costs. It could occur if the plaintiff failed to accept a better offer earlier in the case, which was as good as or better than the Family Provision Order made by the Court.

If the Estate is small (less than $500,000), the Court could restrict the costs and make a capping order to restrict the amount of costs payable out of the Estate.

Please call City Lawyers and Consultants for FREE consultation on (02) 9844 5437

Please email your enquiries to office@citylawyers.net.au