How Executors Should Go About Defending A Will in Queensland

We’ve previously written about what one should do if they wish to contest a Will, but if you’re an appointed executor of a Will that is brought into question, what are the options available to you when defending a Will in Queensland?

In this article, we will cover everything you need to know about:

  • Who can legally defend a Will in Queensland?
  • How to defend a Will in Queensland 
  • What documentation is required 
  • The associated costs of defending a Will
  • How Queensland Probate Can Help You

Let’s get started below.

Who Can Legally Defend A Will in Queensland?

The named executor represents the interests of the deceased estate, as such, it is the duties or responsibilities of an executor to defend it against any applications including family provisions or contested Will applications.

If, however, the appointed executor expresses a desire to not take on their duties, the law provides a list in priority of other persons that can lawfully administer the estate.

Furthermore, if the executor is the person contesting a Will then another person can be named to defend it.

How To Defend A Will in Queensland

When a Will is contested, it is the role of an executor to collect information or evidence that safeguards the interests of the beneficiaries named in the Will, and supports the Will being upheld in court.

It is strongly advised that when you receive a notice of contest, that you seek out legal advice immediately. 

You should provide your solicitor with a copy of the Will and any other documents that detail the assets of the estate and all relevant, factual information pertaining to the person who has contested the Will.

What Documentation is Required

Supporting evidence can include:

  • Any reasons detailed by the deceased for omitting or providing less to a person/s that are eligible to contest the Will;
  • Personal information of the relationship between the deceased and the person contesting the Will, especially if there is evidence of a dispute or estrangement;
  • Financial documents or evidence that details contributions made by the deceased to the person contesting the Will before they passed on.

Aside from the evidence detailed above, it may also be necessary to provide additional information to help further support your case depending on the type of claim one must defend:

  • Bank account/loan statements that prove the value of the estate’s assets and liabilities;
  • Statements from other people about the relationship between the deceased and the person contesting the Will;
  • Statements from beneficiaries detailed in the Will about their relationship with the deceased and their own financial status and health;
  • Medical records of the deceased — this is important when the validity of the Will itself is being challenged;
  • The file of the lawyer who prepared the Will in question and statements from witnesses to the Will — also important when the validity of the Will itself is challenged.

A Practice Direction

When an application to contest a Will in Queensland is filed in the Court, there is a Practice Direction that will apply.

A Practice Direction is a legal document issued by the Court that details the rules regulating the proceedings that all parties must follow, and in this case, specifically lists the steps an executor must follow in order to defend the Will.

Following this collection of the above evidence and documentation, it is also part of the duties of the executor to inform the beneficiaries of the Will that it is being contested. If you have appointed a solicitor, they would be able to assist with this. 

Read “Probate: A Definitive Guide To Navigating Probate in Queensland”

The Associated Costs of Defending A Will

Defending a Will can be a costly exercise for an executor of a deceased estate, but the good news is that you may be entitled to claim executor’s commission for the legal duties and responsibilities you undertake.

The executor’s legal costs are also usually paid out of the assets of the estate, as long as the executor keeps detailed records of the time spent and has acted reasonably in defending the Will.

How Queensland Probate Can Help You

Receiving a notice that a Will is contested can be a stressful experience for an executor. It is important to seek out legal advice to ensure that one’s duties are executed lawfully and according to the wishes of the deceased’s estate.

Queensland Probate’s solicitors are on hand to guide you through the process to help protect your interests as well. If you have any questions regarding your duties as an executor or wish to seek legal advice, speak to us today or visit us at our new offices in Brisbane here!

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