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Defending a will in Victoria

Being appointed an executor of a will can be a high honour from your deceased relative. However, it can also come with its own set of challenges like facing legal responsibilities and upholding the terms of the will. These responsibilities become even more daunting when the will you are meant to defend is being contested. To continue to honour the will, you need to lean on legal representation that knows the ins and outs of defending a will. 

Here is some information about how to defend a will, the process ahead and why a wills claim solicitor can help support you through the process.

You have the freedom to write the will you want

Although the deceased may not have had many assets or a large estate, while estate planning, a will should outline what may be done with a person’s possessions after they pass away. Writing a will is the only way someone can ensure that their assets are distributed the way they want them to. 

Otherwise, if someone dies without a will, then there is a hierarchy of beneficiaries that can receive the assets instead: 

  1. The deceased’s spouse or de facto partner.
  2. Children.
  3. Living direct relatives. 

 

If no one is available to accept the deceased’s possessions, the state or territory will put them up for auction. 

A valid will is written in any way that is convenient for the will-maker but must meet certain criteria. Physical assets such as the home, car and jewellery should be included in the will. Financial assets should be listed next such as shares, bank account savings, and so on. Then, the list should include any items of sentimental value and where they should go. 

Once the will is written, two witnesses above the age of 18 should be present to see that you have signed the documents. Each page must be signed, and the witnesses must use the same pen to sign as well to signify that the will was signed at the same time.

Any executors appointed in the will should be notified that the will has been completed, and they should receive a copy of the document. They should also be informed of where the will is stored and how to access it. 

When writing a will, the will-maker has the freedom to write in or out anyone they want. If they decide to leave a gift or asset to someone specifically, it is advised to speak with a spouse or partner of such an intention so it doesn’t get lost in the shuffle after their death. There is no statement that the deceased can write in their will that can keep someone from contesting a will or challenging it. 

However, if they intentionally left someone out of the will who may likely contest it, the will-maker should have written a letter outlining the reasons why this person may not be entitled to the deceased estate. It also shows that the will was written with consideration. If no letter or explanation is given as to why an eligible person or beneficiary was left out of the will, that makes the document up for further discussion and scrutiny. 

The court process of defending a will

An applicant only has six months to contest a will before they are ineligible to do so. In Victoria, there is no true list of eligible beneficiaries who can contest a will. Anyone can come forward to say that the deceased had a moral obligation to provide for the applicant. It is up to the claimant and their legal representative to prove why the will-maker should have included them in the will. 

The process of defending the will should take into consideration how the court will view the case. Here are a few points a judge will take into account:

  • The financial need of the claimant.
  • Their character and relationship with the deceased. 
  • If they have anyone else supporting them financially. 
  • The value and size of the estate. 
  • The level of dependency on the deceased.
  • The physical, mental or intellectual health of the claimant or other beneficiaries. 
  • How changing the will may affect the other beneficiaries named in the will.

 

While an executor is meant to defend the contents of the will, it could be helpful to consider the merits of the document and how coming to a property settlement may better benefit the estate and its beneficiaries. There might be someone who may need the estate more than someone else already named in the will. For example, there may be two siblings named on the estate with equal shares. 

However, the family member with greater financial need may contest a will saying they are not being adequately represented in the will. This could be a sufficient reason to change the will to meet their needs. 

Another example of a situation on the opposite end could be a family member like their parent or guardian who had an intervention order made against them during the deceased’s lifetime. This hostile relationship would therefore render this otherwise eligible claiment ineligible for benefits. 

The executor should seek expert legal advice when facing a contested will. You were not chosen to be an executor usually because of your legal expertise, but because the deceased trusted you to fulfil their wishes to the best of your ability. 

You and your family provision claims lawyer will examine the eligibility of the claimant and if the claim has been made within the allotted time frame.

How long does it take and how much does it cost to file a Testator Family Maintenance Claim?

If a claimant makes a family maintenance claim within the allotted six months after probate and file within three months of giving notice to the estate, the claims process could go rather quickly. This means that the executor has likely not started distributing the shares of the estate and there is still room for negotiation. 

Depending on the legal advice from your dispute lawyer, the process could either come to a resolution quickly or could take up to 18 months. The majority of property settlement claims are settled outside of court. But, if a potential claimant without a viable reason for contesting the will continues to push the case out, then it may go to court.

Legal costs to be aware of

You may be worried that by taking on the executor role, you are responsible for the costs and legal fees that come with possibly going to court. Most of the cost, however, will come out of the estate if you happen to lose the case. This is primarily because the courts do not want to discourage people from accepting an executor role. 

According to the Civil Procedure Act 2010, the courts do aim to provide fast, fair and cost-effective resolutions. This means that although you may not be responsible for costs in a typical case, if the courts feel as if you are dragging the case out, you may be charged.

How can a solicitor help?

You should have careful legal advice and support as an executor trying to defend a Victorian will. There are many laws and regulations, processes and forms that outline how to proceed in a testator family maintenance claim. 

The wills professionals at Gerard Malouf & Partners are here to help and support you through this process. 

We can deal with the legal details of defending a will while you mourn the loss of your loved one and prepare for the next steps in your duty as an executor. To get started, make an enquiry today

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Contesting Wills
 — Gerard Malouf & Partners

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