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Defending a Will

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Defending a Will is a privilege often exclusive to the Executor/Administrator of an estate.

An Executor/Administrator has a positive obligation to ensure that they defend and uphold the wishes of the deceased.

There are two situations where an Executor/Administrator may be required to defend a Will or defend the distribution on intestacy:

Contesting a Will (Family Provision claim)

Where an eligible applicant contests a Will, only the authorised Executor can defend the Will.

Similarly, with a grant of Letters of Administration to an Administrator, only the Administrator can defend the Will. When contesting a Will an Executor may set aside their duties and also lodge a claim themselves for provision or further provision from the estate. An Executor may do this by naming a beneficiary or another person as Defendant in the proceedings. Once the proceedings are finalised, the original Executor can be reinstated to carry out the remainder of the administration and distribution of the estate. In circumstances where there is no Will the major beneficiary would be the nominated Defendant.

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Challenging a Will

If an applicant is challenging a Will, either the named Executor(s), major beneficiary or any person named as nominee acting for the major beneficiaries may defend the Will.

When challenging a Will an Executor may not lodge a claim against themselves but may only defend any claim challenging the validity of the Will, as one of their duties as an Executor. When the applicant challenges a Will, any attempt to administer the estate will be frozen pending the Court’s decision, unless otherwise agreed upon between the parties.

If you require assistance in defending a claim, contact one of our lawyers today for a free assessment.

 

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Defending a Will FAQs

Who bears the legal costs of an Executor/Administrator defending a claim?

In defending a claim made by an eligible applicant, an Executor/Administrator is expected to obtain legal advice to defend the proceedings. Naturally any legal costs would be borne from the estate of the deceased, unless the Executor/Administrator acts unreasonably in settling the claim at the earliest opportunity.