Defending a Will FAQs

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 Q. What is defending a will?

Answer: Defending a will is split into three categories. Firstly, defending the validity of a will on the grounds of either; lack of mental capacity, lack of knowledge and approval, undue influence, fraud or forgery. Secondly defending a family provision claim and thirdly defending a will dispute possibly involving the rule of ademption, construction of a will, the forfeiture rule, power of attorney dispute, administration and distribution dispute or revocation of probate.

Q. What happens after defending a will?

Answer: If the will being challenged is found to be invalid the next earlier will is looked at. If that will is valid probate is granted. If that will is invalid then look at the next earlier will and so on.

Q. What is defending probate?

Answer: Probate is the document granted to the executor when the will is valid. Probate granted to an executor/s is proof that the will is valid and proof that the executor/s is entitled to administer the estate and distribute the assets in the terms of the will. Your role as executor is to defend the proposition that you are entitled to a grant of probate.

Q. What if there is no will?

Answer: The rules of intestacy apply which means family members listed in order of priority receive the assets of the estate. Spouses and children first in line. You would be defending a challenge to you being granted administration as a major shareholder/beneficiary of the estate.

Q. Who defends probate if there is no will?

Answer: In that case you are defending your right to be granted administration of the estate as the person with the most beneficial interest in the estate.

Q. Is there a time limit to defend a will?

Answer: Not really. However if you were to delay apply for probate of defending a challenge beyond what the court considered reasonable court would simply allow someone else to be appointed administrator.

Q. Who can defend a will?

Answer: The only person/s entitled to defend the validity of a will is the executor/s or other person appointed by the court as administrator for the purpose of the challenge proceedings.

Q. How much will defending a will cost?

Answer: If the executor has done nothing wrong before or during the proceedings the legal costs will be paid by the loser being either the challenger or the estate. The executor will not be responsible for any costs personally. Costs vary depending upon the complexity of each case and could between $100,000 and much more. 

Q. Do I need to go to court to defend a will?

Answer: Only if you have evidence to submit to the court as a witness. This is different to contesting a will (family provision claims) where mostly the parties are required to attend mediation or court. However as executor and defendant you are required to be in court to hear the proceedings.

Q. Do I need to go to a solicitor’s office when defending a will?

Answer: Absolutely not. I have acted for people throughout Australia and all over the world without ever having had a face-to-face meeting. However, most of the time we do eventually meet. The first steps however are usually achieved by phone, email or skype and our first meeting will take place whenever you wish. Sometimes travelling to a solicitor’s office can take unnecessary time and money.  

Q.How long does a will defence case take?

Answer: Depending upon the complexity of the case, but possible 9 to 12 months for settlements to be approved by the court and probably 12 months to 2 years or more or a court hearing.

Q. What factors does the court take into consideration when you defend a will?

Answer: The court looks at all the available evidence regarding the mental capacity of the will maker and the conduct of family members or friends or carers as well evidence from lawyers, doors and forensic specialists.

Q. What money or property is regarded as being part of an estate in a will defence case?

Answer:  There is no ‘Notional Estate” in will challenges. The only assets of the estate are those owned by the deceased at the time of his/her death. However a family member may make an application to contest the will (make a family provision claim) whilst waiting the outcome of a challenge.

If you have a question 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  1800 960 156


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