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Defending a will

Defending a will

As the executor of a will, the job is to comply with the terms of the will and distribute the estate in a timely manner.

On occasions, this will mean dealing with:

  • An allegation that the Will is unfair because it excluded or did not properly provide for someone;
  • An allegation that the Will was invalid because the person did not have testamentary capacity, or it was made under undue influence;
  • Allegations that you as the executor are not complying with your obligations, or going to slowly.

The role of the executor is each of these situations can be difficult.  Expert, pragmatic advice is vital.

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Defending a Family Provision Claim

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. 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.

Defending a challenge to the 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.

Other actions against executors and the estate

It is not uncommon for proceeding to be brought by beneficiaries complaining that the executor has failed to comply with their obligations. The Court has a role in oversee and ensuring that the executor acts promptly, and in accordance with their fiduciary obligations. As the executor you are responsible for any litigation that the deceased was a party to prior to death. In some occasions you may be appointed as the legal personal representative of the estate for the purpose of legal proceedings.

Renouncing or resigning as executor

The law does not require someone nominated as an executor under a will to accept the appointment. A refusal to act as an Executor is called “renouncing”. To renounce an appointment as Executor the person should file a document called Renunciation of Probate. In filing this document, the person represents to the Court that they have not meddled in the deceased’s Estate and that they renounce all rights, powers and authorities given under the Will. Any decision to renounce an appointment as Executor should be done as quickly as possible.

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