How much does it cost to defend a Will?

It’s never easy to mourn the loss of a loved one. Reading their Will can, in some cases, make this period even more stressful and can cause ripples among those closest to the deceased.

When it comes time to administer estate assets, some individuals may find they’ve been excluded from mention or won’t be receiving the inheritance they expected, while others are set to inherit a substantial share.

This leaves people wondering why and many will start considering whether there’s anything they can do moving forward. There can be many reasons that are behind the deceased’s decision, and sometimes their final Will won’t accurately represent their true wishes.

Estate disputes: why, how and who

In some instances, the testator hasn’t recently updated their Will, which means it doesn’t reflect their wishes at the time of their passing. This may also mean that certain estate assets aren’t mentioned at all, and will be distributed according to intestacy laws.

Another possible explanation is that the deceased was manipulated or coerced into changing their Will, in which case an eligible person can challenge the Will. Alternatively, they may have intentionally left particular beneficiaries with a larger inheritance than others, for reasons like the closeness of their relationship.

If an eligible person believes they didn’t receive adequate provision for proper maintenance and support, they can contest the will, so long as they lodge their claim within six months of probate being granted.

In Victoria, to be considered an eligible person, the claimant must be the testator’s surviving husband or wife, de facto and/or same-sex partner or child. If a person was dependent on the deceased or vice versa, they could also be in the position to make a claim against the estate.

Defending a Will against a claim

When an estate is being disputed, someone still needs to be there to represent the testator’s wishes as detailed in their Will. This responsibility typically falls to the executor of the Will, who is most commonly appointed by the deceased.

If the executor doesn’t want to take these duties on, they are under no obligation to accept the role. In such instances, either a substituted executor steps in or the Court appoints an administrator.

During the proceedings that follow a Will contest, there are several responsibilities that come with the executor’s role. Fundamentally, they need to do their best to protect the wishes of the deceased.

After a claim has been formally lodged, court documents are served to the Will’s executor naming them as the defendant. They are then required to prepare, file and serve any evidential documents.

At this time and throughout the estate dispute, the executor must also ensure they make any necessary documentation available to the Court, provide details of the deceased’s estate assets, liabilities and finances, and declare a conflict of interest if one is to arise between themselves and any beneficiaries.

While the executor is in charge of administrating estate assets in accordance with the testator’s wishes in their final Will and testament, this must be put on pause until the Court resolves any disputes. This is because the claim essentially prompts distribution percentages to be reconsidered, and could result in them being changed. If the executor prematurely administers certain assets, depending on the circumstances, they themselves could be held personally liable.

The cost of defending a Will

Seeing as the executor is responsible for defending the Will, are they personally liable for any of the subsequent costs of this? The short answer – no.

Any legal costs associated with defending a Will are covered in one of two ways. If the claimant is unsuccessful in their claim, they will be liable for any costs involved in defending the estate. If they are successful, this cost will be paid out of the estate.

The cost of defending a Will can vary on a case-to-case basis. Some cases are relatively straightforward, with involved parties reaching an appropriate outcome in a few months through mediation. But, if settlement isn’t reached in during this process, cases will likely be taken to court. This can be far more costly and time-consuming for both those contesting the Will and defending the Will.

Speak with our estate lawyers

If you’re defending a Will, contacting an experienced estate lawyer is a great place to start. At Hentys Lawyers, we provide you with a detailed Cost Agreement using plain English. This ensures you’re fully aware of any costs that could be incurred before proceeding.

Please don’t hesitate to contact us for more information.