Defending a Will

Why defend a Will?

Defending a Will is one of the duties of the executor. This means that it is a requirement of law that the executor uphold the terms of the Will. If an executor wishes to contest the Will then they are ordinarily required to step aside in favour of another executor to take up the role.

An executor may consent to vary the terms of a Will if it is legally advisable to do so such as when the court disagrees with the terms of the Will.

However, in the event that someone seeks to overturn a Will or disputes or contests a Will, the executor may be desire and may be advised to defend the Will against the dispute or contest.

When should you seek legal guidance in defending a Will?

Defending a Will can be a long and tricky process. Nearly every step of it will involve litigation or the very real threat of it. The wrong word said can jeopardise your case.

It is best to seek legal advice from the outset.

Who can defend a Will?

The executor of the Will is the only person who can legally defend a Will. In the course of defending the Will, the executor may seek the opinion or input from the beneficiaries under the Will regarding the Will dispute/contest.

How do you defend a Will contest/dispute?

Every Will contest/dispute is different. However they will typically follow this process:

• executor receives a notice from someone wishing to dispute the Will;
• the executor and disputing party may attempt to resolve the dispute by discussions (this is sometimes successful);
• the disputing party will serve a formal claim that should outline what their dispute is;
• the executor will seek further evidence and information to defend the claims of the disputing party;
• the executor will submit a defence (of sorts) to the court;
• the parties may swap and seek further information and evidence from each other to support their claims;
• the parties may then mediate the matter;
• if mediation fails then the matter is typically set down for a trial.

Involvement of your lawyer from the start is critical.

Costs of defending a Will contest/dispute

The costs of defending a Will contest or dispute are typically paid from the estate of the deceased. If there is no cash available upfront, arrangements can be made.

Contact us to defend a Will contest/dispute

Contact us as follows:

• call 07 4931 1888
• email enquiries@smrlaw.com.au
• visit us at 74 Victoria Parade, Rockhampton, Qld