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[us_testimonial style=”4″ author=”Anthony Higgins” company=””]This was an experience that I knew would be hell, however I am truly grateful to the team at Hentys Lawyers, for without this fight I would have received nothing! [/us_testimonial]

No Win No Fee

In all estate matters Hentys Lawyers are prepared to act on a No Win No Fee basis

NO RISK TO YOU

We assess your situation so you know the best approach to take.

No Court Battle

We’ve dealt with hundreds of disputes, and over 95% have been settled out of Court

NO RISK TO YOU

We assess your situation so you know the best approach to take.

No Surprises

We’ll keep you informed and involved at every step of your Will Dispute case

NO RISK TO YOU

We assess your situation so you know the best approach to take.

Defending a Will

Being the executor of a Will can be difficult as it involves taking on a number of administrative and legal duties in relation to the deceased and their estate. If the will is contested, these challenges increase significantly.

In many cases, the executor is a trusted friend or relative of the deceased with minimal legal knowledge and little previous experience in such circumstances, which can often be quite daunting. Your primary duty in defending the will is to uphold the terms of the will – however, you must also assess the merits of such a challenge and determine whether it is in the interest of the beneficiaries to actually negotiate a settlement rather than defend the estate in court.

In most cases, it will be in your best interest for this determination to be made by a legal professional, which is why we would advise you to give Hentys a call at our Melbourne based office today.

How Hentys Lawyers Can Help You

At Hentys Lawyers our experts specialise in defending a will, and can provide the advice and assistance you require at this difficult time.

We will sit with you to discuss a number of considerations such as the financial size of the estate, the evidence available to defend or reject a claim, relationships between all parties, the financial needs of the claimant, and whether there are minors involved to come up with a solution that is satisfactory to all parties.

The following is a non-exhaustive list of some of the specific things that the team at Hentys can do on your behalf:

  • Preparing Affidavits and other documents that satisfy the formal requirements of the Court
  • Checking whether or not the challenge to the will is made within the prescribed time limit
  • Checking whether the person who is challenging the will is legally eligible to make any claim upon the estate
  • Advising you about mediation conferences, as well as Court procedures, rules, timetables and hearings before and during Court proceedings
  • Advising you about the merits of settling or defending claims
  • Instructing you as to what evidence is required to successfully defend a will challenge case
  • Explaining how relevant Laws apply to your case and how we use them to settle or defend the claim being made against the estate.

We’ve helped many clients in your position, and are committed to acting in your best interest, as well as that of the deceased who has appointed you to take care of their will. We apply our depth of knowledge and experience in the sector to achieve the best possible outcome for you.

Getting in touch is simple. Fill out the form above and we will be in touch at your convenience, or call us on 1800 427 229.

Why Choose Hentys Lawyers to Defend Your Will

The Hentys Estate team has over 25 years of experience in resolving estate dispute cases. We can act on your behalf throughout the process of defending a will, always providing you with exceptional service and support.

We will listen to you and take the time to fully understand your case so that we can implement solutions that are proactive, preventative and cost effective. You can rely on us to represent you to the best of our ability throughout your case.

For more information, see our Defending a Will FAQs.

FAQs

What general duties do I have as the Executor of a will?
As the Executor of a will, what duties do I have if the will is contested?
Are there time limits to contest a will?
How much will it cost to defend a will?
Will I always be indemnified for costs incurred in defending a will?
What is the process of defending a will?
What happens at the no-obligation appraisal?
Will I have to go to court to defend a will?
Why is it better to resolve a contested will case out of court?
What happens during mediation?
How will I know if someone contests the will?
What general duties do I have as the Executor of a will?

The role of Executor of an estate brings with it certain responsibilities and duties.  The following is a list of things the Executor will be required to do:

  • Protect, collect and gather the assets of the estate, and provide these to the Supreme Court in inventory form
  • Pay all estate debts and outstanding liabilities
  • Notify beneficiaries of the will and other interested parties of the death
  • Prepare and submit the total costs involved in administration of the estate to the Supreme Court
  • Apply to the Supreme Court for the Grant of Probate or Letters of Administration
  • Finalise income tax returns of the deceased estate
  • Take the necessary steps to distribute the estate in accordance with the deceased’s will.
As the Executor of a will, what duties do I have if the will is contested?

In the event that the will is contested, the Executor will assume responsibility for defending the will.  In this situation, Executors will need expert legal advice to ensure they are acting in accordance with the Law at all times.

As the Executor of the will, it is your duty to uphold the provisions of the deceased’s will. However, in doing this, you must also act in a reasonable manner and, where appropriate, negotiate and compromise with the claimant.  For example, in the event that you are looking after a small estate, it may be more appropriate to compromise rather than proceeding to a potentially costly court battle.

The first step in the process of defending a will is to determine:

  1. Whether the person (or persons) making the claim is legally eligible to do so
  2. Whether the claim has been made in the required time frame (time is a huge factor when it comes to defending a will. If the claim has been made outside the time limit, there is a possibility the claim will be dismissed by the Court.)

The process of defending a will can be difficult for someone with little experience in the area, and you are best to seek legal advice.

Are there time limits to contest a will?

The first step in defending a will is to determine whether the person (or persons) contesting the Will is legally eligible to make a claim upon the deceased’s estate and whether they are making the claim in the required time frame.

Time is a huge factor when it comes to defending a will.  In Victoria, the application must be made:

  • Within six months after the date of the grant of probate or administration, OR
  • Three months from the time you give notice to the estate.

In some cases the court may give an extension to this time so long as the estate has not been completely administrated; however it’s important to remember that while it is a possibility, this extension is not a guarantee.

How much will it cost to defend a will?

In most cases, the legal costs associated with defending a will, will be paid out of the estate. During the legal process, the Executor will generally not be liable for any legal costs until an outcome has been reached, when costs will come from the estate.

In accordance with Victorian Legislation, upon engaging our services, Hentys Lawyers will provide you with a detailed Costs Agreement written in plain English so that you are fully aware of any costs you are likely to incur throughout the process.

Traditionally, there is a large amount of difficulty surrounding the determination of how much such a proceeding will cost. It varies greatly depending on each individual state of affairs, taking into consideration how willing both parties are to negotiate and whether there are any complicating factors.

Will I always be indemnified for costs incurred in defending a will?

During the legal process, the Executors or trustees are usually entitled to be indemnified for all costs that have been reasonably incurred. Therefore in most cases, once an outcome has been reached, the legal costs associated with defending the will, will come out of the estate. This is because the Courts do not want to discourage Executors and trustees from carrying out their duties.

We say ‘usually’ due to the broad powers the Courts are given under the Civil Procedure Act 2010, notably in relation to costs. The Act’s main purpose is to reform and modernise the laws, practice, procedure and processes relating to civil proceedings in the Supreme, County and Magistrate’s Court, to facilitate fair and cost-effective resolutions. It therefore, enables the Court to make decisions in civil proceedings at its discretion.

As an example, if the Court determines that one party is acting contrary to the particular purpose of the case i.e. they are failing to cooperate in an attempt to resolve the dispute in question, or are causing an unnecessary delay in the proceedings, the Court may order the responsible party to pay legal costs.

If the party responsible in such a circumstance is the executor, it would be unjust for the extra legal costs which have been occurred as a result of their actions to be paid out of the estate. As such, they would be expected to bare these additional costs.

This notion was recently set out in the 2014 case of Fielder v Burgess where the judge sated that ‘In my view…it is not obvious to me why a testator’s fault in the making of a will should result in a loss to the successful beneficiary in litigation over the estate’.

What is the process of defending a will?

In many cases, the first sign of a potential challenge is finding out that someone has lodged a caveat.  A caveat is a written notice that prevents the issue of a grant and stops the administration of the estate.  Upon receiving notice of the caveat you should seek legal advice.  At Hentys, we can advise on removing the caveat so that the administration of the estate can continue and a grant of probate can be issued.

Once you’ve been in touch with us, we will offer you an obligation-free appraisal where we will work out the best way to proceed with your case.

What happens at the no-obligation appraisal?

During your no-obligation appraisal we will talk with you to gain a better understanding of your situation and discuss your options based on your unique circumstances. We will suggest the best course of action and clarify any costs that may be involved before you progress. If you decide to go ahead, we will work closely with you, keeping you informed at every step of the way until the matter has been resolved.

Will I have to go to court to defend a will?

In the majority of will dispute cases, the matter does not end up in court as it is instead resolved at mediation. Mediation is a controlled negotiation process where parties are encouraged to come to their own resolution of the dispute with assistance from a mediator. This is required by the Court so that the involved parties can attempt to settle their will dispute before going to Court.

With an experienced legal team behind you, we will help you through the mediation to reach a settlement that both parties can be happy with. At Hentys we have previously resolved many similar cases and know how to handle these situations in the best interest of our client. If you decide to come to us, it is important to note that our end goal never changes: we aim to settle via either a negotiation, or at mediation (also known as alternative dispute resolution – ADR) and for you to never have to step foot inside a court room.

Why is it better to resolve a contested will case out of court?

There are 5 key reasons as to why we will always prefer Alternative Dispute Resolution (ADR) over litigation.

  1. You have greater control over the proceeding as you maintain ownership of the issues and fully participate in the resolution
  2. An agreed resolution at mediation can give parties finality. At the end of a mediation parties sign non-appealable settlement agreements which results in a speedier and cheaper resolution. This settlement is also non-appealable unlike the decisions made in court.
  3. All ADR is confidential, however in litigation all speech is public and recorded
  4. During ADR there is no win-lose paradigm as in court. The main goal is to achieve the interests of both sides so to create a win-win solution
  5. Will disputes put a huge strain on family relations and litigation can further this bitterness as everyone is aiming to win. However, ADR requires both parties to cooperate, which can help mend broken relationships.

Ultimately, we choose ADR because at Hentys Lawyers we endeavour to make the legal proceedings as simple as possible for our clients. We understand that being an Executor can be quite a complicated task, and adding litigation to the mix can become very time consuming, resulting in a very costly exercise as time is money! Take comfort in the fact that at Hentys lawyers, in the last 5 years, no will dispute case run by us has ended up in court.

What happens during mediation?

Mediation is a completely informal process and can be held either before a Registrar of the Court, or a private mediator. In both circumstances the parties’ legal representatives begin by making short opening statements to the Mediator, explaining their position. To follow, the mediator speaks to each of the parties to explain the purpose of the mediation, the costs involved in proceeding to a hearing before a judge, and generally finishes their opening by encouraging the parties to try and resolve this matter here and now.

The parties then move into different conference rooms and offers of settlement are exchanged through the Mediator until the matter is resolved or the parties decide to terminate the mediation.

If the matter does not settle at mediation, the Registrar will re-list it before the Court to allocate a hearing date before a judge however with Hentys Lawyers, this next step should be but a very distant possibility!

How will I know if someone contests the will?

In many cases, the first sign of a potential challenge is finding out that someone has lodged a caveat. A caveat is a written notice that prevents the issue of a grant and stops the administration of the estate. Upon receiving notice of the caveat you should seek legal advice. At Hentys, we can advise on removing the caveat so that the administration of the estate can continue and a grant of probate can be issued.

Our Simple 4 Step Process

1 Review Your Claim
One phone call is all it takes for us to confirm whether you have a reasonable claim or not

1 Assess Your Case
We estimate the size of your claim and present you with our ‘No Win No Fee’ plan

1 Commence Proceedings
We’re with you every step of the way, managing the entire process on your behalf

1 Settle Your Case
We apply our knowledge and expertise to reach the settlement you are entitled to

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We know that contesting a will is an emotional and complicated time. 
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