Defending a Will

The role of Executor of a Will can be a challenging one to fill as it involves taking on a number of administrative and legal duties.  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 experience in such circumstances.  This can often be quite daunting.  At Hentys Lawyers our experts specialise in Defending a Will, and can provide the advice and assistance you require at this difficult time.

The Duties of an Executor

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 also 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.

ensure they are acting in accordance with the Law at all times.

Defending a Will: Where to Start

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.  If the claim has been made outside the time limit, there is a possibility the claim will be dismissed by the Court, however this is not always the case as extensions can, and have, been granted by the court.

The role of an executor of a Will can be a challenging one to fill as it involves taking on a number of administrative and legal duties. If the Will is contested or challenged, your primary duty as an executor is to defend it. In this situation executors will need expert legal advice to ensure they are acting in accordance with the law at all times.

Defending Against a Contest – Melbourne

If a Will is being contested, you would be defending the Will against a Family Provision Claim. In Melbourne, this claim comes under Part IV of the Administration and Probate Act 1958 (Vic).

Your primary duty in ‘defending’ 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. It is of course in your best interest for this determination to be done by a legal professional, which is why we would advise you to give Hentys a call at our Melbourne based office today.

We will then sit with you and consider 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, whether there are minors involved and of course the legal costs incurred by defending and come up with a solution.

Defending a Will in Melbourne

The role of an executor of a Will can be a challenging one to fill as it involves taking on a number of administrative and legal duties. If the Will is contested or challenged, your primary duty as an executor is to defend it. In this situation executors will need expert legal advice to ensure they are acting in accordance with the law at all times.

Defending Against a Contest – Melbourne

If a Will is being contested, you would be defending the Will against a Family Provision Claim. In Melbourne, this claim comes under Part IV of the Administration and Probate Act 1958 (Vic).

Your primary duty in ‘defending’ 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. It is of course in your best interest for this determination to be done by a legal professional, which is why we would advise you to give Hentys a call at our Melbourne based office today.

We will then sit with you and consider 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, whether there are minors involved and of course the legal costs incurred by defending and come up with a solution.

Defending Against a Challenge – Melbourne

If a Will is being challenged, this means that the Will’s validity is being questioned. It is up to the executor to defend its validity by rejecting any claim that the Will was produced as a result of undue influence, duress, lack of testamentary capacity or fraud, or that the Will is illegitimate because it was not executed according to the rules in the Wills Act 1997 (Vic). The onus is on the defendant to argue the claims and provide evidence wholly supporting those contentions.

Irrespective of whether you come to us to defend a Melbourne Will contest or a Melbourne Will challenge, 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 Melbourne court room.

Hence, we always aim to save you both time and money; and being centrally located in Melbourne, just up from Southern Cross Station, your free initial consultation just became even more convenient.

How Hentys Can Help You Defend a Will

If you are the executors of an estate and have found yourself in a position where you have to defend a will, Hentys Lawyers can help you, by:

• Preparing Affidavits and other documents that satisfy the formalrequirements 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 settle or defend the claim being made against the estate.

Defending a Will: How Much Will it Cost?

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.

For more information on defending a will, don’t hesitate to get in touch with the team at Hentys Lawyers.