Defending A Claim When Somebody 'Contests A Will'

People may contest a will by making a Family Provision Claim. The defendant in a Family Provision Claim is the executor of the estate. The executor will then have two sets of duties:

  1. Executors duties in relation to the estate
  2. Defendants duties and obligations to provide evidence

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Executors Duties

If you are the executor of the estate, you have a duty to:

  • Inform potential eligible claimants and other beneficiaries that a Family Provision Claim has been started. The court will seek to resolve all claims relating to the estate as a single matter.
  • Maintain the estate until the court has resolved the claim.
    • You must not distribute from the estate until the issue is resolved. You may be personally liable for any distributions before the court has resolved the claim.
    • If assets have already been distributed from the estate, you must record the names and addresses of anyone who has received any assets and the value of those assets.
  • Not disclose confidential information.
  • Assist the court. This duty requires an Executor to provide to the Court all available relevant information.
  • Disclose any ‘conflict of interest’. A ‘conflict of interest’ may arise if:
    • you owe the estate money
    • the estate owes you money
    • the claimant owes you money.

If there is a conflict, the Court may decide to appoint new representatives.

Defendant's Duties & Obligations

Defendants must provide multiple documents in the administrator’s affidavitThe documents required to be provided in the administrator’s affidavit are detailed in a Practice Note published by the Supreme Court.

Defendant’s affidavit:

A summons formally initiates a Family Provision Claim. You should start to prepare your defendant’s affidavit when you receive the plaintiff’s affidavit.

The defendant’s affidavit must include:

  • A description of any ‘relevant property transaction’. This refers to any property that has been transferred or sold for less than full market value in the 3 years before the deceased’s passing.
  • A description and value of all assets in the deceased’s estate.
  • A copy of the deceased’s will and probate or letters of administration.
  • A list of expenses and any other liabilities of the estate that have been paid out of the estate. This usually includes payment of any debts or amounts outstanding in the deceased’s name. The administrator or executor’s costs must also be included.
  • A list of every person who has been named as a beneficiary in the will, and a list of every eligible person, that the administrator or executor can reasonably find, who could bring a claim for family provision.
  • A list of every person holding property of the estate as a trustee.

A relevant property transaction is a transaction that results in property being held by another or becoming subject to a trust and full market value was not paid for it. The purpose for prescribing these transactions is to ensure that property that ought to be a part of the estate remains a part of the estate.

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