An executor of a will, may be called upon to commence and defend proceedings in a number of circumstances. The executor has a duty to defend the estate and uphold the terms of the will. In defending proceedings, the executor has to act reasonably, this includes negotiating with an applicant who is contesting or challenging the will.
There may also be circumstances where a beneficiary or independent administrator could be called upon to defend a will. An individual may challenge a will on a range of grounds, including the following:
- The will is not the last will of the deceased;
- The testator did not make adequate provision for an individual who is an ‘eligible person.’
- When the will was made, the testator lacked testamentary capacity;
- The testator lacked adequate knowledge and approval of the will;
- The will was forged, fraudulent, or made under the undue influence of another party;
- The will does not satisfy legislated requirements; or
- The testator revoked the will.
If a person has a legitimate interest in an estate, they may file a caveat to prevent a grant being made under a will. A caveat remains in force for 6 months from filing. If a person wishes to challenge a will, they can commence proceedings against the estate. If an individual believes that they were not adequately provided for under a will and are an ‘eligible person’, they may make a family provision claim.
Duties of an executor
An executor has a duty to defend the estate and they must fulfill their role in accordance with the law. If a will is challenged, the executor should seek legal advice as soon as possible. Defending a will can be complicated, and stressful without quality legal advice. If an executor seeks to challenge the will, they will need to renounce their duties as executor. In some circumstances, an independent administrator or beneficiary will defend the will.
The process for defending a will depend on the nature of the claim. In general, the executor’s legal costs will be paid from the estate. However, the executor may be required to pay costs if they have acted unreasonably.
If you need assistance defending a Will from a family provision application or deciphering whether a person contesting or challenging a Will is eligible to make a claim, email us at firstname.lastname@example.org or call us on (02) 4929 7002.