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DEFENDING A WILL IN QUEENSLAND

The number of Wills disputed in Australia continues to rise each year. If you are an Executor under a Will that is contested, it is vital that you are fully informed of your responsibilities and obligations in defending the Will.

Administering a deceased estate can be daunting and time consuming. The additional strain of responding to a Family Provision Application can be an added pressure at what may already be an emotional and stressful time.

Our expert will dispute lawyers are here to help guide you through the process of responding to a contested Will dispute. We will assess the strength of the Applicant’s case and provide you the strategies you need to defend the terms of the deceased’s Will. If you need help to protect your inheritance from a Will dispute, call Craven Lawyers today for a no obligation, free consultation.

I am an Executor of a deceased estate, what are my duties?

When a person dies, their property vests in their Executor. This means that the Executor must hold the deceased’s property on trust for the beneficiaries of the deceased’s estate.

An Executor is also commonly considered a Trustee of the deceased’s estate. The law about a Trustee’s obligations to their beneficiaries is complex. A prudent Executor/Trustee would obtain expert legal advice to fully inform them of their responsibilities in bringing the deceased estate to a conclusion.

Where a Will is contested and a Family Provision Application made against an estate, an Executor is obligated to assist the Court by providing all information within their knowledge about the estate assets and liabilities.

An Executor is also obliged to inform the Court of any other persons who might be considered an eligible Family Provision Applicant. As part of family provision proceedings, an Executor will be required to notify other potential applicants of the claim that has been made against the estate.

Executors are duty bound to maximise the deceased’s estate and reduce as far as possible the impact of any Family Provision Application on the estate. However, Executors are also obliged to finalise the administration of a deceased estate at the earliest possible time.

Responding to a Family Provision Application requires an Executor to consider whether the claim can be settled through negotiation which in turn minimises the cost and delay in finalising the estate or, where the claim is unreasonable, proceed to have the claim determined by a Judge.

I have received written notice of a claim against an Estate, what should I do?

A person who intends to contest a Will must notify the Executor of the estate of their potential claim in writing within 6 months of the date of death of the deceased. The potential claimant must then file their Application in the Court within 9 months from the date of the deceased’s death.

Once an Executor receives notice of a potential claim against an estate they are obliged to preserve the property comprising the deceased’s estate until the claim against the estate is resolved.

When an Executor makes a distribution from an estate to a beneficiary, correspondingly, the value of the deceased’s estate is reduced. Executors who have received notice of a potential Family Provision Application may be held personally liable for any loss suffered as a result of any distribution made from the estate before the claim is finalised.

Costs incurred by an Executor in defending a claim to contest a Will

An Executor is obliged to discharge their executorial duties competently. In responding to a claim to contest a Will, an Executor must assess the validity and strength of the claim. Obtaining expert advice from an experienced will dispute lawyer at an early stage will ensure that you are fully informed how best to respond to the claim.

An Executor who acts prudently and efficiently in responding to a contested will dispute will more often than not have their costs paid out of the estate. If an Executor fails to make a genuine attempt to resolve the dispute the Court may order that the Executor’s costs be capped or paid by them personally.

Call Craven Lawyers Now on (07) 3172 7100 and let us help you defend a Will.

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