Defending a Will

“An executor named in a will bears a heavy responsibility and must fulfill a number of duties and obligations in cases where the will is contested by other parties. An executor of a contested will should seek legal advice and representation as soon as they become aware of a dispute.”

The numbers of will dispute cases and contested wills in Australia have increased considerably over the past few years. Therefore, an executor should be prepared for any potential challenge to the will in which they are appointed. In the event of a defending a contested will or challenged will, the executor and beneficiaries find themselves involved in complex litigation which can, without proper advice and representation, be costly, time consuming and draining.

If you are an executor in a contested will, contact Parke Lawyers as soon as you become aware of the challenge so that our specialist will dispute lawyers can advise you in relation to your rights, obligations and duties as well as the processes and stages of litigation in will dispute cases. It is important that you obtain advice as early as possible for defending a will

Legal advice and assistance to executors.

If you are an executor or beneficiary in a will, even if not contested, it is best to seek proper legal advice on your role, duties and the tasks you are expected to undertake in the course of executing the will. The role of an executor is complex and daunting, our specialist wills and estate lawyers can offer you advice and help to ensure that you understand that role and assist you in undertaking the tasks involved in executing the will. This provides a level of protection for you as an executor and prepares you best for any potential challenge to the will.

Executors in contested will litigation.

Executors who find themselves a party to a Family Provisions or Contested Will Claim case must fulfil a number of duties including:

Not to distribute the deceased estate until the Family Provision or Contested Will Claim is determined by the court.
Assist the court by providing, and making available, where possible, all relevant information and documents in connection with the deceased estate as well as the deceased’s intentions and reasons for making provisions in the manner they are made in the will.
Provide with details of the deceased estate assets and liabilities including up to date valuations of such assets and liabilities. In cases where the valuations are disputed, independent expert valuations may be needed.
In the event of an executor also being a beneficiary in a contested will estates, the executor needs to make an application to the court to obtain separate representation of their roles.
In the case of a conflict of interest between the executor and any of the beneficiary parties in a contested will case, the executor must declare the conflict of interest to the court and take a passive and inactive role. In such cases, a new representative need to be appointed to the role of the executor.

Contested will case settlement.

While a will dispute case is initiated by way of application to the court, not all cases progress to full proceedings and a hearing. As matter of fact, Parke Lawyers have a strong record of settling the majority (over 95%) of will dispute cases, through mediation and without the need to progress to complex or expensive court proceedings.

What to do next?

If you are an executor party to Family Provision or Contested Will Claim action, it is extremely important that you contact us as soon as you become aware of the proceedings. You can make an appointment to discuss your case with our wills dispute lawyers who can assess your case, advise you on the litigation process, plan and prepare your defence and provide you with expert legal representation.