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Defending a Contested Will

Defending a contested will can be a complicated and stressful event for executors. Estate Litigation Associate April Kennedy gives valuable insight and her legal tips on this complex area of law to help executors facing a will challenge.  

Contesting wills is a controversial topic that often generates polarising opinions. As lawyers, we tend to bear the brunt of other people’s opinions on family provision laws. Generally, people have strong opinions on how the law should operate to allow or prevent certain categories of persons to contest a will to seek provision (or further provision) from an estate.

Often, when someone laments the unfairness of these laws, it is because:

  • they do not understand the purpose for the enactment of family provision legislation (enacted to allow for spouses, minor children and dependents to seek provision from an estate where the breadwinner gave their assets to other family members or friends); or
  • they consider that the person contesting the will is ‘undeserving’ of any entitlement from the estate; or
  • the person making the will had good reasons to leave them out (there’s two sides to every story!); or
  • they consider that a person should be able to make a will however they please and that it should be ‘airtight’.

In this context, we often hear throwaway comments such as ‘a will isn’t worth the paper it’s written on’ or ‘why bother making a will when it can be contested anyway?’. In reality, if a will is prepared properly, with the correct advice, and the person making the will follows that advice, then there are strategies that a person can employ to mitigate the risk of their will being contested.

However, sometimes it’s too late, and the person left to deal with the aftermath of a will being contested is the executor. We often hear or read about cases where the focus is mostly on the conduct and circumstances of the person contesting the will. There is little information out there for an executor who finds themselves dragged into legal proceedings when a will is contested.

When can a will be contested?

As a starting point, it is important to identify the situations where a will might be contested. A few common scenarios are:

  • When someone who the will maker had a moral obligation to provide for is completely left out of the will or is not provided for adequately under the terms of the will. For example, a spouse, child or dependent (although this varies from state to state);
  • When a will is not prepared properly. For example, when the document has not been signed or prepared in accordance with the laws;
  • When the will maker did not have capacity or was not in the right state of mind to make a Will. For example, if they were suffering from cognitive impairment such as dementia or Alzheimer’s disease.

It is important to remember that a person cannot contest a will simply because they are not happy with the terms of the document. In a family provision claim, the person contesting the will must be eligible and they must not have been provided for adequately under the terms of the will. In other types of will disputes, the person contesting the will must have proper standing as a beneficiary under a previous will or they must have some entitlement under the intestacy laws (when someone dies without leaving a valid will).

Who is involved when someone does contest a Will?

The most common parties to a claim are:

  • The applicant – the person bringing the claim;
  • The executor – the person defending or responding to the claim;
  • The beneficiaries – anyone entitled under the terms of the will.

What role does the executor play in defending a claim against the estate?

The executor plays a pivotal role. Their role is to defend the Will and uphold the wishes of the will maker (to an extent). They essentially step into the shoes of the will maker and act as their proxy. The role of the executor can be very demanding, and legal proceedings can take an emotional toll on anyone. This is especially so if the person making the claim is a family member or is known to the executor.

Once legal proceedings are commenced, the executor’s role is to answer the claim. This involves meeting with lawyers, going to Court, reading and preparing court documents and affidavits setting out the nature and value of the estate. They must also respond to allegations made by the applicant about the person who has passed away (and sometimes about themselves). These allegations can be personal and sensitive, especially if that person is known or related to the executor, or there are already strained relations between the executor and the applicant.

Defending a contested will: the legal process

Once a claim is filed, the executor is required to participate in the court process. The executor is generally required to participate in alternative dispute resolution methods such as mediation or a settlement conference. The executor must play an active part in resolving the claim. If the claim cannot be resolved at mediation or settlement conference then the claim will proceed to the relevant Court (District or Supreme Court in Queensland, and Supreme Court in New South Wales) where the case is heard by a Judge.

What should an executor do when they are defending a contested will?

When a will is being contested, it is not uncommon for the executor to adopt one of two approaches:

  1. Fight to the death and try and get rid of the claim at all cost; or
  2. Pay an amount that’s worth more than the claim just to make it ‘go away’.

Neither of these options are optimal.  The executor needs to consider the merit of the claim before adopting any strategy. They also need to be pragmatic, emotionally resilient and objective. Litigation can be an emotional process where a lot of family history is dug up and dirty laundry is aired in court documents where it is read, discussed and analysed by strangers (i.e. parties to the proceedings, lawyers, Barristers and a Judge).

The executor also needs to act reasonably and rationally because their costs might not always be paid from the estate.  There are cases where the court has considered that the executor was acting unreasonably by not providing documents, not abiding by timeframes and being purposefully obstructive. As a result of their conduct, they were ordered to pay a good portion of their own costs from their own pocket as opposed to those costs coming from the estate as they usually do. These costs can be in the tens of thousands.

Defending a contested will: what not to do – a classic example

The case of Collett v Knox [2010] QSC 132 should serve as a cautionary tale for executors. This case involved a claim by a de facto spouse of the deceased who had lived with her for many years and had been granted a life tenancy in relation to the family home.  The executors (being the children of the deceased) fought the claim all the way to a trial. They took out a mortgage on the estate property and ran up legal costs in the estate with the intention that the family home would have to be sold and the de facto partner would not be able to live out his life tenancy in the property.

The Trial Judge found that the actions of the executors were unreasonable and had been designed to effectively throw the de facto partner out of the home, arguing it would have to be sold to pay for the legal costs.  The legal costs of the parties were in excess of $100,000 dollars (the executor’s costs alone were approximately $70,000!) and the main asset was the family home which was only worth about $200,000.

The executors were indemnified for their costs but they were limited to $10,000 which means that they were able to have this amount paid from the estate, but they were ordered to pay the $60,000 balance personally. The case sets out the duties of executors and the ability of the Courts to intervene and make costs capping orders in order to give effect to the wishes of the deceased. You can read the costs judgment here.

What should you do if you are an executor of a will that is being contested?

If you are an executor defending a contested will, you must seek legal advice as soon as you have been put on notice that a claim or legal proceedings been commenced. An executor should consider the following when choosing their legal representation:

  1. The lawyer or firm is well-versed in the area of Succession Law; and
  2. The lawyer or firm has knowledge and experience in both defending and bringing claims against the estate so they can identify the strengths and weaknesses of each claim.

How Attwood Marshall Lawyers can help

If you are an executor defending a contested will and have been threatened with legal proceedings, it is imperative you get quality legal help for an experienced lawyer. A good defence requires not only the solid understanding of the role of the executor but also expertise in estate litigation and Succession Law. Many clients come to Attwood Marshall Lawyers after having used their local generalist solicitor or the lawyer who prepared the will, only to find their time and money has been wasted. Do not risk the estate. Seek expert legal help early.

Established in 1946, Attwood Marshall Lawyers is the leading estate litigation law firm. Unlike generalist firms, our highly experienced team of lawyers and paralegals are dedicated to the specialist field of estate law and will contests. We are reputed for our legal expertise, the delivery of exceptional client services, and are proud of our renowned intent to help people. Our offices are in every capital city and we can provide you with a complimentary initial consultation today.

Please contact Estate Litigation Senior Paralegal, Amanda Heather, on direct line: 07 5506 8245, email: aheather@attwoodmarshall.com.au or Freecall: 1800 621 071

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April Kennedy

April Kennedy

  • Associate
  • Wills and Estates
  • Direct line: 07 5506 8219