Types of Will Defences

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  • Defending a Will Contest (Family Provision Claim)

In this section you are defending a claim lodged by a person who is seeking provision (or further provision) out of the estate of a deceased person's. The claim is that the claimant was not properly provided for in the will of the deceased at the time of the deceased death.

This area is not a black and white area of law. In other words the answer to any claim is usually not just a matter of saying ‘good claim’ or ‘bad claim’. There is a considerable amount of ‘grey’ involved because the court /judge in each State has discretion when it comes to making an order. So, to some extent it can be like going into a casino when you go into court, it’s a gamble.

Before a court will make final orders in these cases either probate or administration must be granted to someone. Probate of the will is normally ‘granted’ to the executor/s named in the will (unless there is a dispute). Administration will normally be granted the beneficiary having the largest share of the estate as a beneficiary (unless there is a dispute).

The executor/s or administrator/s will be named as defendant in the claim and will ‘defend’ the claim. This is where the first problem usually arises. Many defendants and their solicitors often think they must defend the claim/s to the bitter end. No, the law requires an executor or administrator to conserve the estate where possible and in certain circumstances compromise proceedings brought against the estate.

The second problem in these cases is where the opposing parties and their solicitors cannot agree on a compromise. Each side might agree that the claim has some merit but how much merit is the question. Thousands of dollars can be wasted fighting over relatively small amounts of money for ‘the principal of the matter’.

Unfortunately there can often be some ‘bad blood’ amongst family member’s making the negotiations very difficult.

However this is where you and your opposition need the assistance of experienced solicitors helping to take the emotion out of negotiations and provide a solution estimated to be what a court would order if the case proceeded to a hearing before a judge.

Defending a Will Challenge

This section is about defending a challenge to the validity of the will itself, not the contents of the will. Although clearly the person who is challenging the validity would not like the contents of the will either otherwise they would not be challenging the will itself. If the challenger is unsuccessful and if he/she is ‘eligible’ they may be able to contest the will afterwards (family provision claim).

However the two processes are completely different with completely different rules.

A will challenge will allege either;

  1. The will maker did not have the required legal mental capacity.
  2. The will maker did not have the required legal knowledge and approval of the will.
  3. There was fraud or forgery involved and the will was therefore not the will of the deceased.
  4. There was undue influence placed upon the deceased when making the will to such extend the deceased was coerced/forced into making the will.

This area of law is much more complicated compared to contesting a will (family provision) because the witnesses involved usually include many more than just family members. Also the evidence required is much more than just family history and often includes evidence from the medical profession or forensic professionals and very often lawyers involved in the preparation of the will.

You may see your case as straight forward and the answer simple and straight forward however a judge is required to cover much more evidence compared to family provision cases and like any other court case these court cases is like going into a casino because all judges are human and each will have a slightly different view of any case.

Court cases over many years disclose that only the very strongest cases of challenging the validity of a will succeed. Most cases start with the challenger needing to show a judge that there is indeed enough evidence (before an actual full hearing) to doubt the validity of the will.

If that first step is successful the executor/defendant is required to produce evidence at a court hearing demonstrating that the will is indeed valid. Often the most critical evidence comes from the solicitor who prepared the will. Court cases are commonly much more difficult with home made wills for the reason that often there is no solicitor present or indeed any witness or reliable witness.

Defending a Will Dispute

Defending a will dispute is more like a validity challenge then a family provision claim. The dispute is like a challenge, not to the whole will but rather to a section of the will because of an unwanted or unlawful section or unwanted effect upon beneficiaries.

The areas of law includes disputes over:

  1. The ademption rule and exceptions to the rule.
  2. The forfeiture rule and exceptions to the rule.
  3. Construction of a will to clarify the meaning of the will or portions or words in the will.
  4. Statutory or court ordered wills.
  5. Accounts of attorney holding a power of attorney.
  6. Removal of executor/s or administrator/s for fraud or conflict of interest
  7. Remedy for negligence or mismanagement of the administration of an estate by the executor/s or administrator/s.

Each of these cases should involve negotiations from the beginning with the help of experienced solicitors to avoid years of arguments and wasted legal costs. These cases are often more complicated compared to validity claims and/or family provision claims.

Because the area is complicated I believe the defendant should be proactive in getting to the bottom of the legal position of a claim early. The defendant’s case should clearly be put on the table together with any offer of compromise so that in the end could save the estate a considerable amount of money in legal costs either from the start or to show a judge at the end what you have done to try to prevent a blow out of legal costs.

Give me a call anytime. I will personally answer the phone. I'm happy to discuss with you the three (3) most common mistakes made by will dispute contestants that can lead to long delays, huge legal cost and an unhappy end. No cost, no obligation. Choose me to represent you or not, at least you will have the knowledge to start on the right track.

Eric Butler Free Call 1800 960 156

doyles Law Society of NSW STEP Law Society of New South Wales Queensland Law Society Law Institute Victoria

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Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 13, 111 Elizabeth Street ,
Sydney NSW 2000


Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 11, 456 Lonsdale Street,
Melbourne VIC 3000


Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 10, 239 George Street,
Brisbane QLD 4000


Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 1, 45 Hunter Street,
Newcastle NSW 2300