It is the executor’s role to defend a will against a claim, regardless of whether the claim is well founded or frivolous.

A person may challenge a will on grounds including undue influence, suspicious circumstances, or a lack of testamentary capacity, or a person may contest a will by making a family provision claim for provision (or further provision) from the estate. 

Once a person notifies the executor of their intention to bring a claim, the executor should seek legal advice from a lawyer experienced in defending claims on estates.

The executor may write to the claimant outlining the legal reasons why their claim is likely to fail. Where a person has challenged a will, the executor may provide medical evidence, or other evidence from witnesses as to the circumstances surrounding the preparation and execution of the will.

Where a person has contested a will, the executor may set out a reference to any factors in section 60(2) of the Succession Act 2006 (NSW) that operate to weaken the claimant’s claim. 

The executor should also put the claimant on notice of the potential cost consequences, should their claim fail.

If the executor does not have sound reasons to defend the claim, the executor may decide to engage in negotiations in consultation with any named or potential beneficiaries. 

If negotiations fail to resolve the matter and the claimant commences court proceedings, the executor may defend the claim by obtaining evidence from witnesses whose evidence supports the executor’s claim and disproves or discredits the claimant’s evidence.

How to Defend a Contested Will in NSW

In NSW, a person may contest a will by making a ‘family provision claim’ against the estate. 

Family provision claims may be well founded and have good prospects of success or may be frivolous with low or no prospects of success brought by an aggrieved yet hopeful family member or friend. The strength of a claim will depend on the facts and circumstances of each case to defend a contested will. 

Once a person notifies the executor of their intention to bring a claim, the executor should seek legal advice from a lawyer who has experience in defending wills and claims on estates.

Depending on the circumstances, the executor may write to the claimant setting out the legal reasons why their claim is likely to fail including a detailed reference to any factors in section 60(2) of the Succession Act 2006 (NSW) that operate to weaken the claimant’s claim.

The claimant should also be put on notice of the potential cost consequences of taking the matter further, should their claim fail.

The executor may decide to engage in negotiations in consultation with the named or potential beneficiaries. 

If negotiations do not resolve the matter and the claimant commences court proceedings, the executor can defend the claim by obtaining evidence from witnesses whose evidence supports the executor’s claim and disproves or discredits the claimant’s evidence, specifically in relation to any factors in section 60(2) of the Succession Act 2006 (NSW) which operate to weaken the claimant’s claim.

Who Can Contest a Will

In NSW, only a person who satisfies the definition of ‘eligible person’ as defined in section 57 of the Succession Act 2006 (NSW) can contest a will in NSW. An ‘eligible person’ includes: 

• A spouse of the deceased
• A de facto of the deceased
• A child of the deceased
• A former spouse of the deceased
• A grandchild of the deceased who is wholly or partly dependent on the deceased
• A member of the deceased’s household who is wholly or partly dependent on the deceased
• A person with whom the deceased was living in a close personal relationship at the time of the deceased’s death.

In the case of a former spouse, a wholly or partly dependent grandchild or member of the deceased’s household, or those with whom the deceased person was living in a close personal relationship at the time of the deceased’s death, the person must also show that there are ‘factors which warrant the making of the application.’ In other words, there is an additional threshold that applies to these applicants.

Defending a Challenged Will in NSW

A person may challenge a will on the grounds of undue influence, suspicious circumstances, or a lack of testamentary capacity, among other reasons. 

As each claim is different, the most appropriate course will depend on the facts and circumstances of the case. 

Once a person notifies the executor of their intention to challenge a will, the first step for the executor to take is to seek legal advice from a lawyer who has experience in defending challenges to wills.

Where a person claims that the testator lacked testamentary capacity, the executor may obtain a copy of the testator’s medical history, to provide a better understanding of the testator’s testamentary capacity at the time of making their last will. The executor may obtain an expert report in relation to the testator’s testamentary capacity at the time of making their last will. 

Where a person claims that the will was prepared under undue influence or in suspicious circumstances, the executor may write to the lawyer who assisted the testator to prepare their will and request a copy of the testator’s file. The executor may also obtain evidence from those who witnessed the execution of the will and other friends and family whose evidence disproves the claimant’s claim.

Medical records may also be relevant as the testator’s testamentary capacity, or lack thereof, could have made them more susceptible to undue influence or suspicious circumstances. 

Who can Challenge a Will in NSW

Who is eligible to challenge a will depends on the grounds upon which the person is seeking to challenge the will and their relationship to the will-maker (known as the ‘testator’).

There are many different circumstances where a person may be able to challenge a will and it is important that you obtain advice from a solicitor experienced in will and estate disputes as soon as possible. 

One example is where a person named in a previous will, but who is left out of a current will, takes issue with the circumstances surrounding the preparation or execution of a subsequent will, or believes the will-maker testator lacked testamentary capacity when he or she made the subsequent will. The person may be able to challenge the subsequent will.

Another example is where a beneficiary named in a current will whose benefit is reduced compared to an earlier will, may have grounds to challenge the subsequent will.

If you believe your interests have been reduced or affected in any way by a will, we recommend that you contact an experienced solicitor to obtain advice on your rights and options. 

Who Can Defend a Will in NSW

Whilst it is the executor’s role to defend a will, the beneficiaries will often have an important role in helping the executor to defend a will in NSW. 

Once being notified of a claim, the executor should seek advice from an experienced wills and estates lawyer to obtain advice to defend a will. 

The executor should also inform the beneficiaries of the claim and seek the beneficiaries views in relation to the claim. 

The Process of Defending a Will

Once an executor has been notified of a potential claim, the executor should obtain legal advice to identify the nature of the claim and the grounds upon which the executor may defend a will. 

The executor should contact the beneficiaries to inform them of the potential claim and seek their views. 

Where a person has contested a will, the executor may make enquiries with the beneficiaries, the will-drafter (often a solicitor) and other witnesses to ascertain information relevant to the factors in section 60(2) of the Succession Act 2006 (NSW) and specifically, any factors that operate to weaken the claimant’s claim.

Where a person has challenged a will, the executor may make enquiries and obtain information relevant to the claim, for instance, where a claim relates to the testator’s testamentary capacity, the executor may obtain a copy of the testator’s medical history and in the case of undue influence or suspicious circumstances, the executor may obtain information that relates to the circumstances surrounding the preparation and execution of the will. 

The executor should also put the claimant on notice of the potential cost consequences, should their claim fail.

Depending on the circumstances, the executor may decide to engage in negotiations in consultation with any named or potential beneficiaries. 

If negotiations fail to resolve the matter and the claimant commences court proceedings, the executor may defend the claim by obtaining evidence from witnesses whose evidence supports the executor’s defence depending on the claim made.

Your Legal Rights and Responsibilities as an Executor to a Will

The person(s) named in a will as executor is responsible for carrying out the instructions in a person’s will. 

The executor has the right to engage a lawyer to assist them with administering the estate and the executor has the right to be reimbursed from the estate for the costs involved in administering the estate.

The executor is responsible for the administration of an estate including locating the will, making funeral arrangements (though this may depend on the family situation), notifying government agencies of the death, and keeping the beneficiaries up to date. 

The executor is also responsible for applying for probate, identifying all assets and debts, paying debts, paying legacies, transferring specific gifts, distributing the estate to the beneficiaries in accordance with the terms of the will, and preparing tax accounts, among other duties. 

The executor also has the role of defending the estate from claims against the estate. 

Defending a Challenge of Caveats

A person with an interest in a deceased estate can file a document called a caveat which prevents the Court from issuing a grant in relation to the estate. 

An executor who wants to proceed with an application for a grant of probate can apply to the Court for a caveat to be removed if they believe that the caveator has no standing or that there is no real dispute as to the validity of the will. 

Alternatively, if there is doubt as to the validity of a will, contested proceedings can be commenced for probate to be granted in ‘solemn form.’

Empower Wills and Estate Lawyers Can Help You With Defending a Will

If you need help defending a will, contact our inheritance lawyers now on 1300 414 844.

Our lawyers are experienced will and estate dispute lawyers who can dedicate themselves to protecting your interest in an estate. 

We offer flexible fee structures tailored to each client’s circumstances and in some cases may be able to offer conditional or “no win no fee” agreements. 

Frequently Asked Questions

Is there a timeframe to defend a will, a challenge or contest to a will?

Once an executor is notified of a potential claim on the estate, the executor should obtain legal advice as soon as possible and action any requests without delay. 

If an executor has received correspondence from a potential claimant that contains an offer and a specific time frame (i.e. 21 days) during which the offer remains open for acceptance, which may be in the form of an Offer of Compromise or Calderbank offer, the executor should obtain legal advice as soon as possible to ensure they understand the risks of rejecting the offer or failing to respond within the time frame provided. 

In some cases, the executor may expose the estate to a risk of costs if the executor rejects an offer or fails to respond to an offer within the time provided, which proves larger than a final judgement amount. 

If a matter proceeds to court, the matter will be case managed by the court and the executor is required to comply with all time frames set by the court. 

What does it cost to defend a will in NSW?

The cost of defending a will depends on several factors, including the legal representative’s fee structure, the size and complexity of the estate, and the timing of the resolution.

The cost to defend a will that is successfully resolved through negotiations may still be in the range of $20,000 to $40,000, depending on many factors. 

Those matters that are unable to be resolved through negotiations and proceed to a court hearing will have higher fees. The legal costs for an average-sized estate that proceeds to hearing can exceed $100,000.

In most cases (though there are exceptions) the settlement or the court order will allow the executor to be reimbursed from the estate. 

The claimant may be left to pay his or her own costs, or they may also be reimbursed from the estate, depending on the facts and circumstances and the outcome. 

What are my rights as a beneficiary?

A beneficiary of an estate has rights under both the Succession Act 2006 (NSW) and at common law and these are often not enforced or protected to their full extent.

A beneficiary’s rights include:

• The right to be informed as to whether the deceased left a valid will and the right to receive a copy of the will.
• The right to be informed if they are listed as a beneficiary of a will.
• The right to be informed about the nature and extent of the deceased estate.
• The right to receive information about their expected share of the estate and the date by which the entitlement is to be received. 
• The right to be informed of any delays.
• The right to be informed on matters involving the general administration of the estate. 
• The right to be notified of any liabilities that attach to the portion of the estate to which the beneficiary is entitled.
• The right to be informed about the possibility of any contests, or challenges to the will which could potentially arise, that could impact the beneficiary’s share of the estate.
• The right to be notified about any legal proceedings against the estate. 
• The right to receive a Statement of Distribution which provides information about their share of the estate, including how the executor(s) calculated that information. 

We recommend that you contact a lawyer if you have a question regarding the rights of beneficiaries.

Do you need assistance with defending a will?

If you are an executor of a will and are facing a legal challenge, contact our expert inheritance lawyers now on 1300 414 844. 

We offer flexible fee structures tailored to each client’s circumstances and in some cases may be able to offer conditional or “no win no fee” agreements.

Want to learn more?

Read more about how to stop someone contesting a will here.

Read more about the time limits in NSW for contesting a will here.

Disclaimer: the information in this article relates to NSW law and is general information only. It does not constitute legal advice and should not be relied upon. If you have a question or legal issue we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts and circumstances.