When someone challenges a deceased person’s Will, the executor plays an important role in protecting the estate and ensuring the deceased’s wishes are properly considered. An executor defending a claim against a deceased’s Will must balance their duty to administer the estate with their obligation to consider any legitimate family provision claim.
In New South Wales, a person who believes they have not received adequate provision from an estate may make a family provision claim under the Succession Act 2006 (NSW). These claims can affect how an estate is distributed and may require the executor to provide evidence, negotiate with the claimant, or defend the claim in Court.
An executor, also known as the estate’s Legal Personal Representative (LPR), is responsible for protecting estate assets, communicating with beneficiaries, and ensuring the administration process follows the law.
If you are an executor responding to a family provision claim in NSW, our estate lawyers can provide advice about your legal responsibilities and options.
What happens when someone challenges a deceased person’s Will?
A person may challenge a Will by making a family provision claim if they believe the deceased failed to provide adequately for their proper maintenance, education, or advancement in life.
A successful claim does not invalidate the Will. Instead, the Court may order that the estate provide additional financial provision to the eligible person.
Under the Succession Act 2006 (NSW), eligible persons may include:
- a spouse or de facto partner of the deceased;
- a former spouse in certain circumstances;
- a child of the deceased;
- a person who was financially dependent on the deceased;
- a person who had a close personal relationship with the deceased.
You can read more about family provision claims under the NSW Succession Act 2006.
What is an executor’s role in a family provision claim?
The executor’s role is not simply to defend the Will at all costs. Instead, the executor must act in the best interests of the estate and consider whether responding to the claim through negotiation, mediation, or Court proceedings is appropriate.
The executor must:
| Executor responsibility | What this involves |
|---|---|
| Protect estate assets | Prevent unnecessary loss or distribution of assets while a claim remains unresolved. |
| Follow the Will | Administer the estate according to the deceased’s wishes unless the Court orders otherwise. |
| Assess the claim | Consider whether the applicant has a reasonable prospect of successfully obtaining further provision. |
| Provide information | Disclose relevant estate information and evidence required during the claim process. |
| Act impartially | Balance the interests of beneficiaries and the applicant when making decisions. |
Should an executor defend every family provision claim?
No. An executor should carefully assess each claim before deciding how to respond.
If a claim has strong prospects of success, defending the matter may unnecessarily reduce the estate through legal costs. In some situations, negotiating a settlement may provide a better outcome for beneficiaries.
However, where a claim lacks merit, the executor may need to defend the estate by presenting evidence about the deceased’s wishes, relationships, financial circumstances, and reasons for the distribution in the Will.
How does an executor defend a claim against a deceased’s Will?
When defending a family provision claim, an executor may need to provide evidence about the deceased’s estate and personal circumstances.
This may include:
- the value of assets and liabilities held by the estate;
- the deceased’s relationship with the claimant;
- the reasons behind the distribution in the Will;
- the financial circumstances of beneficiaries;
- any previous financial support provided to the claimant.
The executor may also need to prepare an affidavit setting out relevant information for the Court.
Can an executor settle a claim against a Will?
Yes. An executor may negotiate and settle a family provision claim if doing so protects the interests of the estate.
Many estate disputes resolve through mediation before reaching a final hearing. Mediation allows the parties to discuss possible outcomes and reach an agreement while avoiding the uncertainty and expense of litigation.
The NSW Courts encourage parties involved in many civil disputes to consider alternative dispute resolution options where appropriate.
What happens if an executor ignores a family provision claim?
An executor should not ignore a claim against the estate. Failing to properly respond may create delays, increase costs, or expose the executor to personal liability.
An executor should obtain legal advice before distributing estate assets while a family provision claim remains unresolved.
How can executors reduce the risk of estate disputes?
Although executors cannot prevent every challenge to a Will, careful estate planning can reduce the likelihood of disputes.
- Ensure the Will clearly explains the deceased’s wishes.
- Review the Will regularly after major life changes.
- Document reasons for excluding or reducing an eligible person’s inheritance.
- Obtain professional estate planning advice when preparing a Will.
Frequently asked questions about defending a Will challenge
Can an executor challenge someone contesting a Will?
Yes. An executor can defend a family provision claim if they believe the applicant has not established a valid basis for further provision. However, the executor must act for the benefit of the estate rather than individual beneficiaries.
Does a family provision claim invalidate a Will?
No. A successful family provision claim does not cancel the Will. Instead, the Court may adjust the distribution of the estate.
How long does an executor have to respond to a family provision claim in NSW?
The timeframe depends on the circumstances of the claim. Executors should obtain legal advice as soon as possible because strict deadlines apply to family provision matters.
Expert Advice About Defending a Claim Against a Deceased’s Will
Executors have significant responsibilities when someone challenges a deceased person’s Will. Responding appropriately can help protect estate assets, reduce unnecessary disputes, and ensure the estate is administered correctly.
If you are an executor defending a family provision claim in NSW, our estate lawyers can provide advice about your obligations, the claim process, and your options.
Contact us on (02) 9818 2888 or email [email protected].