If a will names you as the executor then part of your duty includes defending any challenge or contest to the will.
Defending a Challenge to a Will
A challenge may be made to the validity of a will on the basis that the will was not executed properly, the deceased lacked testamentary capacity or the deceased was subject to undue influence.
If the validity of a will is challenged, then as the executor you need to prove the validity of the will. The usual course of events involves the person challenging the will lodging a caveat against a grant of probate being made without notice being given to them. The executor then files proceedings seeking a grant of probate with the executor being named as the plaintiff and the challenger as a defendant. In some circumstances a challenger may seek their own grant of probate. Once the proceedings have been commenced, the court will order the parties to file and serve evidence in support of their positions.
Defending a Contested Will
A will may be contested on the basis that the will fails to make any provision or adequate provision for an eligible person (a family provision claim). As the executor, you have a duty to defend the estate and attempt to uphold the terms of the will. However, the executor must act reasonably to seek to negotiate and compromise a claim where necessary. This is particularly so if the estate is relatively small and the cost of defending the proceedings would greatly diminish the value of the estate.
The executor will be named as the defendant in a family provisions claim and will be required to file Affidavit evidence detailing the assets, liabilities and value of the estate, the financial and other circumstances of the beneficiaries and reply to evidence that has been filed by the plaintiff.
Costs of Defending a Will
In most cases the executor’s legal costs will be paid out of the estate. However, if the executor is found to have acted unreasonably they may not be successful in recovering their costs out of the estate. Please see or fee policy for more information.
Segelov Taylor can provide advice and act for an estate where a will is contested or challenged.