Being appointed as an executor or administrator of a deceased person’s estate comes with its challenges. One particularly difficult issue that they may find is having to defend the estate from a claim. The procedure that needs to be followed depends on the nature of the claim.
If you are the executor or administrator of an estate and are facing or potentially facing a claim against the estate, it is important to obtain legal advice. The team at Szabo & Associates Solicitors are here to help. We have experience assisting clients defending disputed estates, focusing on protecting your liability and solving the matter practically and efficiently. Contact us on 02 9281 5088 or complete our online enquiry form, and we will be back in touch.
The Role of the Executor
Executors have a fiduciary duty towards beneficiaries of a deceased’s estate. This duty means acting honestly and in the best interests of the beneficiaries. It also involves upholding the terms of the Will against a claim. However, this does not mean at all costs. Rather the duty requires consideration of the merits of a claim. The claim may be perfectly reasonable, in which case it would be appropriate to compromise to resolve the dispute and not deplete the estate’s assets unnecessarily by incurring excessive legal costs.
Defending a Contested Will: Family Provision Claims
A common claim that an executor has to defend is a claim for a ‘family provision’. These claims arise when an eligible person feels that they have not been given an adequate share of the estate to which they were entitled to by virtue of their relationship to the deceased.
If the claim is successful, it allows the Courts to vary a Will or the distribution of an estate in favour of certain eligible individuals.
It is important to understand the likelihood of a claim succeeding and, by extension, whether the claim is worth defending.
Defending a Challenge to a Will’s Validity
A Will may be void because of a lack of compliance with the legal formalities. Alternatively, a claim may allege that the deceased’s Will is invalid on the grounds of mental incapacity, undue influence, duress or fraud. These types of claim can involve particularly complex legal arguments.
Defending a Claim
On receiving notice of a claim, an executor must understand what their duties are. These include:
- preserving the estate and not distributing the estate to any beneficiary until the claim is resolved;
- acting reasonably when defending a claim;
- objectively considering the merits of the claim and assessing the applicant’s prospects of success without bias;
- where appropriate, negotiating and compromising; and
- keeping the beneficiaries advised of the progress of the claim.
If a claim does proceed to Court, the executor must conform to all Court directions, including filing an affidavit setting out the assets and liabilities of the estate.
Contact our Wills and Estate Defence Lawyers in Sydney, NSW
Defending a claim against an estate can be stressful, complicated, time consuming and not without personal jeopardy. However, help is at hand. Legal fees to defend an estate are paid out of the estate, and the experts at Szabo & Associates Solicitors can help you resolve the claim and complete the estate’s administration. Please contact us on 02 9281 5088 or complete the online form.