Defending a Will. NSW. VIC. QLD.

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Are you a Beneficiary or an Executor, defending a Family Provision claim? Over the past 25 years I've worked with a countless number of people who had the same problem. The stress, the anger at times and an eagerness to get it all over and done with. Try to get it right early before thousands of dollars are wasted on legal costs. I invite you to give me a call any time you like to discuss any problem.  

1. Defending a Family Provision Claim (Will Contest).

As a defendant it is imperative you select an experienced solicitor, preferably a wills and estates accredited specialist, to represent you and the beneficiaries. This is your first step to potentially saving time and legal fees. You and your solicitor should proceed basically as follows. Remember however there is always an exception to the rule or process. Sometimes urgent action needs to be taken and sometimes delayed action. Every case is different.

You may not know whether the claimant has a good case or a weak case at the beginning. Usually you will just receive a communication that a claim is going to be made. Unfortunately, it is generally difficult to settle the claim until you are aware of the precise financial circumstances of the claimant and about his/her health and of the beneficiaries.

Whilst you are awaiting details of the claim you will continue your path to obtain probate. When probate is granted you will provide a copy to the claimant. Probate is a public document and available to the public including the claimant so it is pointless refusing to give the claimant a copy.

Details of the assets and liabilities of the estate are not contained in the grant of probate except for an estimate of the net value of the estate and a list of liabilities. Therefore you should provide details to the claimant as soon as they are available.

Sometimes there can be a delay in obtaining full details of the assets and liabilities. One example could be that you are waiting for taxation liability of the deceased and/or estate to be finalised. Give the claimant whatever you have without delay because in the end the cost of delay could be borne by the estate.

While you are awaiting full details from the claimant you should commence to obtain financial and health details of the beneficiaries. Beneficiaries are not bound to provide their details in the proceedings however this is a very important point for you to discuss with your solicitor. If a beneficiary is in good health and is extremely well off financially there may be no need to provide his/her details to the court.

The fact that no beneficiary details are provided will in effect let the court know that beneficiary has no special financial claim. By the time you are reading this section you will probably already have learnt that family provision claims are mostly about the financial circumstances of the contestants, the claimant and the beneficiaries.

Your solicitor will tell you whether or not the claimant has a good case. If the answer is “yes” you will discuss what the best approach would be to try and settle the claim before the claimant commences proceedings. Sometimes it is preferable for you to try and negotiate with family members without the solicitor. Other times you may ask the solicitor to try and settle the claim for you. Many cases are settled without the need to commence proceedings.

If the family members involved are prepared to settle out of court your solicitor will prepare documents for all to sign. If all persons involved are over 18 years of age and have full mental capacity the deed of settlement or letter of agreement does not have to be approved by a court. The legal costs in such a case will be at hourly rates and will depend upon how much time was involved in negotiations.

However if there are persons involved who are under 18 years of age or who do not have full mental capacity the agreed settlement upon will have to go to court for a judge to approve. This means documents (sworn or affirmed affidavits) will have to be prepared by the solicitors on each side in the manner stipulated by the rules of court sufficient for the judge to read and understand the various financial needs of all family members concerned. 

The settlement agreement will only be approved if the judge is of the view the settlement is a proper settlement and in particular that any person under 18 or without full mental capacity has been provided with adequate provision from the estate. If settlement negotiations are not successful the claimant will file in court a serve you with a summons and sworn affidavit setting out their claim.

When you have been served with the summons and affidavit you will be required to swear or affirm an affidavit of your own setting out details of the estate and responding to the allegations made by the claimant. You will also be required to file and serve affidavits sworn or affirmed by the beneficiaries providing their details.

The beneficiaries are entitled to rely on you to protect their interest in the will/estate. Sometimes however there can be a conflict of interest and one or more of the beneficiaries can obtain their own solicitor and barrister however only for the purpose of assisting in preparation of their affidavit. Rarely are beneficiaries permitted to have their solicitor or barrister in the actual court hearing. Beneficiaries represented in court by the defendant’s legal team usually consisting of a solicitor, paralegal and a barrister, depending upon the complexity of the claim.

With the evidence from both sides of the contest now received, all persons involved will have a clearer picture of everyones' financial position (which is the most important element in these case). Both sides will again attempt to settle the claim.

While negotiations are taking place a date will be set for a compulsory mediation of the claim. A mediator will be chosen although each State has different rules in this regard. Sometimes the judges become involved in discussions with the parties and at this stage barristers also frequently become involved.

Mediation usually starts with a round table conference with everyone present. The representative of each team makes a statement putting his or her client's case. There is sometimes further discussion about the points raised and then each team goes into a separate room for private discussion. Throughout the day or half day of the mediation there are continuing attempts to settle the claim. 

If the claim is settled at mediation or shortly thereafter (which frequently occurs) the lawyers agree on written terms and when everyone has signed those terms the matter is concluded. Only in exceptional circumstances can there be an appeal, for example if someone fraudulently misled the proceedings. Otherwise the matter comes to an end unless of course the court is required to approve the terms agreed upon.

If the matter does not settle at mediation the case will be listed for a hearing before a judge. In general terms (remembering every case is different) it might take 6 months to get to mediation and 12 months to get to a hearing as a minimum.

Between the mediation and the hearing there are endless opportunities to settle the matter. Only as a last resort should anyone allow and case to go to a hearing in my opinion. Going into a hearing is like going into a casino, it’s a gamble especially in these cases where judges have discretion as to what orders to make.

Each hearing/trial is before a single judge who has discretion as to the possible orders he/she or she can make. You don’t know which judge you are going to get and each judge will have a different view of the case. You don’t know how the witnesses are going to present during their cross examination of their earlier written and sworn evidence. The size of the estate may longer be as first thought and the circumstances of participants may have changed.

At the conclusion a disgruntled team can appeal the judge's decision and that will delay the distribution of the estate another 12 months. Accordingly, I can guarantee that two experienced teams of lawyers opposing each other will always settle a claim rather than go to a hearing. There would have to be very exceptional circumstances before experienced lawyers would not settle at mediation.

2. Defending a Will Challenge (Validity of a Will).

Please select an NSW Specialist in Wills & Estates Law to act for you. There may be several wills involved and you and your solicitor will work together, the first job being to obtain all past available original wills and copies too as well as any solicitor files having to do with wills prepared by the deceased of the years.

Your solicitor will give you some advice about the process involved in defending the will. However, at this stage he/she will not be in a position to give you any idea of the likely outcome of the case. Do not delay in applying for probate just because you have been notified of a potential challenge. Advise the challenger you are applying for probate and if they want to stop you they should lodge a caveat to do so. 

The challenger may decide not to challenge when pressure is brought to bear especially if his/her case is weak.  However be prepared to receive a caveat because this is an important part of the process. As soon as possible after receiving the caveat you should summons the challenger to court to show cause as why the caveat should not be removed to allow probate to be granted.

Several times after collecting a file from a previous solicitor it has become obvious that nothing was being done in the file after a caveat was lodged clearly because neither solicitor knew what to do next.

If probate is granted that grant does not prevent a challenger from commencing proceedings to revoke the grant on the grounds the will is invalid however the onus of proof then rests upon the challenger not you and that is a slight advantage to you in any court proceedings.

When the summons to remove the caveat comes to a short court hearing the challenger must be ready to convince the court that there is some doubt about the validity of the will. If the challenger is successful you will be required to file a ‘statement of claim’ and later affidavit evidence supporting the validity of the will. 

If your caveat lodged is found to lack merit (the judge believed there was no doubt about the validity of the will) the challenger you would be liable to pay the costs of the proceedings to that point. Also, if after lodging the caveat the challenger (before the caveat hearing) decides to withdraw the caveat he/she would be liable for the costs of the estate incurred to that point, if any.

The fact that a judge has allowed a caveat to remain in place preventing probate without a hearing does not guarantee a win in the final hearing for the challenger. Not every case is certainly not black or white and you and the challenger may realise there is room for compromise and wish to settle the dispute out of court.

However, you cannot decide on the validity of a will between yourselves or your legal team. If you come to an agreement about the validity of the will on legal grounds your legal team may present the facts to a judge and attempt obtain his/her approval as to the validity of the will. If the judge agrees he/she will make orders as to the proper administration of the deceased estate.

If the challenge is not settled each side will prepare their case for hearing before a judge. Evidence can be from individual witnesses such as family members, doctors, solicitors, handwriting experts and others. Hearings of this nature are often over a few days and are nearly always very expensive. They involve a lot of preparation in addition to the days in court. Generally the loser pays.

The exception to the rule is if the judge considers the proceedings were required because of the fault in some way of the will maker.

3. Defending a Will Dispute

This is the area of law where you certainly need a very experienced solicitor on your side.  These matters are notorious for being slow sometimes solicitors sitting on a problem not knowing what to do next and letting time slip away.  Your solicitor will ask you to provide information about the deceased, the will/s of the deceased and some details of the beneficiaries named in the will/s and other parties. There may be a considerable amount of investigation required which will be costly so you want to be sure you f your legal position before you take a strong defence.

Your solicitor will explain the process in the particular type of will dispute which will be different from other types. If negotiations fail to bring a result sooner rather than later one party should commence proceedings to attempt to resolve the matter if not by mediation then by court hearing. Sitting around doing nothing towards resolving the matter rarely helps the problem but can add to costs.

Not everyone is entitled to dispute a will and you must be awake to that situation from the beginning. Make sure you are communicating with a person who has a right to bring an action otherwise you can tell the disputer they have no rights and put an end to pointless further communication.

A person entitled to commence proceedings must be able to show that any court order sought would result in a benefit to the under the will. An entitled person could be a family member, beneficiary, a creditor or any other person who could show entitlement following a successful order of the court.

When all the evidence is to hand your solicitor will give you some advice about the prospects of success and you will then make a decision as to whether or not you wish to make your application to the court. Remember, the loser will most likely be ordered to pay the legal costs although there are exceptions to that rule.

To commence proceedings someone must file a ‘Statement of Claim’ in the Supreme Court setting out you allegation or if you require more time to prepare your case you can either ask the executor/s or their solicitor for more time or file a caveat to stop probate being granted of the Will.

Sometimes it is clear to all concerned that there is a problem with the will. Possibly no one is able to determine precisely what it means or what some part of it means or what the will maker was trying to convey. In those circumstances the parties can approach the count unified as to what they want. That is, they want a judge to determine what was meant in the will that they have been unable to determine.

In cases of uncertainty of the terms of the will it is often found that the uncertainty was the fault of the will maker or his/her solicitor and in that event the costs of the proceedings will often be paid out of the estate or in some cases costs to be paid by the faulty solicitor. 

However, you cannot decide on changes to the Will between yourselves or your legal advisers' and attempt to follow that agreement without a court order. If you come to an agreement about the meaning of the will your legal team may present the facts to a judge and attempt to obtain his/her approval as to the change. If the judge agrees he/she will make orders as to the proper meaning.

If the dispute is not settled each side will prepare their case for hearing before a judge. Evidence can be from individual witnesses such as family members, doctors, solicitors, handwriting experts and others. Hearings of this nature are often over a few days and are nearly always very expensive. They involve a lot of preparation in addition to the days in court. Generally the loser pays.

The exception to the rule is if the judge considers the proceedings were required because of the fault in some way of the will maker.

The process described above applies to all applications for a court order. However sometime a dispute arises after probate has been granted and in that case no caveat is relevant. The applicant simply seeks orders from the court in accordance with their allegations. Executors can be removed; administrators can be appointed to finalise the distribution of the estate; estate financial accounts may be required to be provided to the court for approval; financial accounts of the power of attorney for the deceased may be called for investigation and approval and other any other orders including orders as to who is to pay the legal costs.

Give me a call anytime. I will personally answer the phone. I'm happy to discuss with you the three (3) most common mistakes made by will dispute contestants that can lead to long delays, huge legal cost and an unhappy end. No cost, no obligation. Choose me to represent you or not, at least you will have the knowledge to start on the right track.

Eric Butler: 1800 960 156