Defending a Will (Qld)
An executor is appointed in a will to manage and distribute a deceased’s estate, ensuring debts and taxes are paid, and beneficiaries receive their intended inheritances. One of the important duties of an executor is to respond to any challenges or claims brought against the estate. By virtue of their position, an executor is named as a defendant in any estate litigation. This article looks at the role an executor plays in defending a will in Queensland.
Defending a will in Queensland
In Queensland, the preparation and administration of wills is governed by the Succession Act 1981. This law protects a testator’s freedom to make a will according to their own wishes, but also allows eligible people to question the validity and provisions of a will. When either of these scenarios occur, it is up to the executor to negotiate with claimants and creditors and, when necessary, defend the will in court proceedings.
Defending the validity of a will
When someone with an interest in a deceased estate has doubts about the validity of a will, they can lodge a probate caveat with the Supreme Court of Queensland to delay the probating of a will. In that case, if the executor believes that the will is in fact valid, they can present evidence to that effect to the court. For example, the executor might collect evidence such as:
• medical information, records, and professional opinions about the competency of the testator when they prepared the will
• evidence that the testator acted voluntarily and was not coerced into making the will. It is crucial to have testimony from anyone who was present during the drafting and signing process and evidence that the testator received independent legal advice
• solicitor’s records about the preparation of the deceased’s will and
• testimony from the witnesses to the will.
Defending the terms of a will
Executors represent the estate in any litigation, which means they have a duty to defend against unreasonable family provision claims. When an executor is informed of a potential claim, they need to assess the claim to determine if it is reasonable. In most cases, an executor cannot make this assessment without expert advice. A solicitor can provide timely advice about whether a claim is reasonable once they are provided with a copy of the will and related documents, such as a list of assets and liabilities of the estate, and a summary of the factual background of the case.
If the executor considers that the claim is not reasonable, they must gather evidence to uphold the will and protect the interests of the original beneficiaries. A solicitor can advise on the types of evidence that are necessary to defend the will. For example, an executor might be called on to collect evidence about the following:
• documents about the value of assets and the amount of liabilities
• reasons the testator disinherited or made a lesser provision for the person who is contesting the will
• the nature of the relationship between the deceased and the person making the claim against the estate or
• evidence of prior financial contributions made by the deceased to the person who is contesting the will.
Prior to obtaining legal advice, the executor should not respond to any correspondence from the individual making the claim or take steps to distribute the estate. However, it is best for the executor to keep the beneficiaries updated if there is a claim made against the estate as there will be a delay in distribution. The executor can inform the beneficiaries that they are taking legal advice and determining whether the claim is reasonable.
Costs of defending a will
Executors are often worried about the costs of defending a will, especially in cases where the matter is likely to proceed to a Court hearing. In fact, the costs associated with defending a will can be significant, but executors have a right of indemnity and do not personally pay any of the incurred legal costs. An executor is entitled to have the legitimate administration expenses paid out of estate funds, and this includes the proper and reasonable legal costs incurred in defending the estate. In order for the executor to retain the right of indemnity, it is essential to consult with a solicitor about which steps are appropriate in each case.
It is essential for an executor to seek legal advice about their duties when defending a will. If an executor fails to properly discharge their duties, they may be held responsible for any adverse consequences suffered by beneficiaries or the deceased estate. For any legal advice about defending a will in QLD or estate administration more generally, please get in touch with Go To Court Lawyers on 1300 636 846.
Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.