Defending Wills & Estate Litigation

Estate Litigation

Helping you uphold the terms of a Will and protect the wishes of the deceased

Defending a Will in the event that a family provision claim is made can be complicated and stressful without trusted legal advice. At Attwood Marshall Lawyers, we feel a deep sense of responsibility to protect the wishes of the deceased and can help you ensure the deceased’s Will or testamentary intentions are fulfilled.

When a person brings a Family Provision claim for a share, or a larger share, of an estate in circumstances where you are an executor or administrator, you will be called upon to defend the claim and uphold the terms of the Will. The court process can be a daunting experience for an executor or administrator. When defending a Will, it is important for an executor or administrator to obtain specialist legal advice about their duties and their role in the litigation process.

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The executor of the estate or the administrator in the case of intestacy has a duty to defend a family provision claim brought against an estate. If the executor or administrator wishes to bring a claim on an estate, the major beneficiary of the Will would be the appropriate defendant in the Court proceedings as the executor or administrator cannot bring an action against themselves.

If an estate is contested the executor or administrator of the estate can continue with the administration of the estate. However, it is important that the executor or administrator does not make any distributions from the estate except in special circumstances. If an executor or administrator distributes an estate having knowledge of a family provision claim and there is insufficiency in the actual estate to meet an order in favour of a successful applicant, the executor or administrator can be held personally liable.

It is one of the duties of an executor or administrator to uphold the Will and defend any claim brought against an estate. It is the role of the executor or administrator to represent the interests of the estate and the beneficiary’s interests in any contest to the Will.

The executor or administrator must place all relevant evidence before the Court in relation to the family provision claim to assist the Court with its determination. The executor or administrator of the estate should also provide notice to the beneficiaries of the contest against the estate.

The Courts have taken the position that an executor or administrator should not defend a Will at all costs and should objectively assess the evidence and the merit of the application and if appropriate, compromise an action brought on an estate.

The Court process is set down by the relevant court case management procedure and usually requires the parties to place evidence before the Court in support of their position. An executor or administrator should gather and present evidence to the Court to protect the interests of the beneficiaries in support of the Will being upheld. Evidence in family provision applications is compiled by way of affidavits. Affidavit evidence is evidence in sworn written form.

The Court requires parties involved in family provision proceedings to attend Alternative Dispute Resolution (usually taking the form of mediation) in an attempt to resolve the matter. It is common for family provision cases to settle by negotiation or at mediation.

Should the matter not be resolved at mediation the matter will be set down before a Judge for determination.