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Will disputes can be complicated. Your first step should be to speak to a lawyer experienced in contested Wills.
When a loved one has passed away carrying out their wishes as contained in their Will can be an emotional time for everyone, especially when there is a disagreement about the Will.
Will disputes are common, and you may find yourself needing to defend a Will against a challenge being made by an executor, beneficiary or an unexpected third party, like a friend or neighbour, who believes they’re entitled to part of the estate.
If you need to defend a Will, seeking expert legal advice from the very beginning is invaluable. Succession law, which governs how a Will is created and executed, is a highly technical area of legal practice. Having someone who can help you navigate this area will give you peace of mind and also help reduce the emotional load during what is already a difficult time for you and your family.
Our team has been helping families defend Wills for decades, and we successfully settle 98% of our cases out of court. Here, we explain when you might need to defend a Will, the steps you’ll need to take, and how a lawyer can help.
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Our experienced Will dispute lawyers are here to help.
Why do I need to defend a Will?
There are many reasons why someone – such as a beneficiary, executor or third party (including a former spouse) – might want to challenge the Will. These include:
Wills are commonly challenged because there is a:
- belief the Will should provide them with further provision
- concern about how certain words should be understood
- the Will was not prepared and executed correctly
- concern about the delay in bringing the Will to probate
- suspicion of undue influence or coercion by a beneficiary, executor or third party
- concern about the mental capacity of the deceased at the time the Will was created
- dispute about the management of the estate when there are two or more executors.
If you’re looking for more information about the different types of Will disputes that can arise, you can find a detailed explainerhere.
In most cases, when someone challenges a Will, it falls to the executor to defend against that challenge because they are responsible for managing the estate’s assets and executing the Will.
Defending a Will can be a complicated task. You’ll need detailed knowledge of your state’s legislation, as well as how to collect evidence to defend against the claim. This is where an expert Will lawyer can help guide you through the process and ease the workload of being an executor.
Who can defend a Will?
- the executor
- any beneficiaries of the Will (in certain circumstances)
- the Administrator of the estate
In some cases, it can be ideal for executors and beneficiaries to work together to defend a claim from a third party.
How to defend a contested Will
There are several key steps you’ll need to take when defending a Will, which our team of experts will be able to guide you through.
1. Seek legal advice and review the Will
2. Consider mediation instead of court
Asking a court to hear your Will dispute can significantly add time and expense during an already challenging period. Instead, mediation can help resolve disputes faster and with less conflict than a court trial.
In mediation, a neutral third party – called a mediator – works with all parties to help them resolve the dispute on their own. The outcome isn’t binding.
Frequently Asked Questions (FAQs) about Defending Wills
In short, no. Most disputes are resolved outside of court by settlement, but a very small minority of cases do eventually go to court.
If your Will dispute goes to court, you may be required to physically attend the hearing and present evidence. Most courts are outfitted with video conference facilities, and you may be able to dial into court remotely to provide evidence, but there is no guarantee.
Because the cost of defending a Will depends on a wide range of factors, any estimate of costs needs to be made on a case-by-case basis.
We can provide you with an estimate of the cost of resolving your dispute, and we also work with you on a 'no win, no fee'* basis.
Defending a Will challenge can take several months to a few years, depending on the complexity and the court's schedule. However, most Will disputes can be resolved within 12 months.
When you defend a Will, there are a few things that could happen:
- You could successfully defend the challenge, with the Will upheld in full
- The judge may nullify portions of the Will and provide directions to the executor about how the estate is managed
- The Judge may make an award for further provision to the claimant
No matter whether you win or lose, the executor will be required to finalise the estate’s distribution.
Get expert help with defending a Will
Expert legal advice is essential when it comes to defending a Will challenge, especially if the person contesting has employed a lawyer of their own.
We’ve represented Australian families on both sides of Will disputes for decades, and 98% of our cases settle quickly and professionally out of court.
Contact us today for a confidential, no-obligation consultation to explore your options.
Need to speak to us sooner? Call us on 1800 111 222
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We have lawyers who specialise in a range of legal claims who travel to Tasmania. If you need a lawyer in Hobart, Launceston or elsewhere in Tasmania, please call us on 1800 675 346.