Defending 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.

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.

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.

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.

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’.

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.

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.

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.

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.

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!

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.