Segelov Taylor

Help for Executors

Help for Executors

Part of the role of an executor is to deal with and defend any challenge or contest to the Will.  Sometimes the executor, or one of the executors is several are named in the Will, may seek to challenge or contest the Will.  When this occurs, the court will ensure that someone appears to represent the estate.

Other than in very rare cases, the executor (or person representing the estate) will have their legal costs met from estate funds.

Defending a Challenge to a Will

A challenge may be made to a Will on the basis 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.  There is a presumption that a Will that complies with all formalities, and is not irrational on its face, is valid.  

The usual course of events involves the person challenging a Will lodging a caveat against a grant of probate being made without notice being given to them. 

The executor then files a statement of claim seeking a grant of probate with the executor being named as the plaintiff and the challenger as the defendant. In some circumstances (such as where the challenger was named as an executor in an earlier Will), the challenger may seek their own grant of probate by way of cross claim. 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 provisions claim). 

The executor will be named as the defendant in a family provisions claim and will be required to file an affidavit and 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.

As the executor, you have a duty to defend the estate and attempt to uphold the terms of the Will. However, an 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.

Costs of Defending a Will

In most cases, the executor’s legal costs will be paid out of the estate.  In some cases, where a person who challenges or contests a Will is unsuccessful they may be ordered to pay the estate’s costs.  In very rare cases, where the executor is found to have acted very unreasonably or inappropriately,  they may be prevented from being reimbursed the costs from the estate.  

It is important that executors or others defending a Will obtain specialist legal advice to make sure they comply with their obligations, avoid personal risk of costs, and achieve the best outcome.  

More Information
Unless a Court otherwise permits, Claims contesting wills must be commenced within specified time periods. Tanya Segelov discusses the time periods involved in contesting a will.
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