Dealing with the death of a loved one is hard enough, but it can be even harder when someone contests or challenges the deceased’s Will.
If you’re an Executor or a beneficiary in a Will it’s important to know what to do to defend a claim against the deceased’s estate.
These days Wills and Estates are rarely simple. Complex family situations are quite common with blended families, defacto relationships and other personal circumstances.
For this reason, it’s not entirely uncommon for someone to Contest a Will.
The laws in each state and territory can be quit complicated so you should seek out an experienced Wills and Estate Planning solicitor to advise you on defending a Will.
What happens when someone contests a Will?
In Queensland it is necessary for the claimant to apply to the Supreme Court to challenge the Will. The court will take into account all the circumstances of the claimant’s life, the size of the estate and the relationship between them and the deceased.
Spouses (including de factos), children (including step and adopted children) and some dependants (parents of the deceased person, the other parent of a child under 18 who is the child of the deceased person, or anyone under 18 who was dependant on the deceased person) can make a claim if they can show they were not adequately provided for in the Will.
Your solicitor will first consider if the person (or persons) contesting or challenging the Will is legally eligible to make any claim upon the deceased’s Estate.
This eligibility can sometimes be ascertained quite easily, though a Court may be required to make the determination.
The claim in most cases needs to have been made within a specified time limit, though in some circumstances the Court may grant an extension.
What does the Executor need to do?
If a Will is contested, the Executor has several responsibilities. The Executor must preserve the deceased person’s estate until after the claim has been considered and determined by the Court.
They can’t distribute any of the deceased person’s estate once they receive notice of a claim, otherwise the Executor can be held personally liable.
There are some exceptions to the duty not to distribute, such as when the claimant is also a beneficiary – your solicitor can provide advice on this.
The Executor must also assist the Court in providing information regarding the financial affairs of the deceased person’s estate and any other documentation relevant to the claim – unless there is a legal obligation to keep the information confidential.
There are also other complex scenarios that must be considered, such as whether separate legal representation may be required, whether there is a conflict of interest between the Executor and the claim against the estate and any disputes regarding the value of estate.
For these reasons it’s critical that you engage an experienced Wills and Estate Planning solicitor to help you navigate the claim process.
How much does it cost to defend a Will?
In most cases the costs associated with defending a Will are paid for out of the Estate. Your solicitor should be able to provide an estimate of the costs involved.
What next?
You should speak to a qualified Wills and Estate professional who can provide advice on defending a Will.
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