Did you know that in Australia, about 60% of adults have made a will and that this rate is higher compared to statistics in the U.K. and U.S.? This is according to a report by the several universities in Australia in partnership with Public Trustee and Guardian organisations in the country. The report titled “Having the Last Word? Will Making and Contestation in Australia” also revealed that despite the prevalence of wills in the country, “not all wills reflect current intentions and/or circumstances.” This is where will disputes arise. But what exactly is a will and how do you go about defending a will in estate disputes?


A will is a signed legal document that outlines one’s assets and how it must be distributed upon his or her death and to which beneficiaries his or her estate will be administered. It also names the executor of will, the individual responsible for ensuring that all assets are properly distributed to their respective beneficiaries as intended by the deceased. When will disputes arise, it is the duty of an executor to defend a will against any challenges.


Defending a Will: Answers to Commonly Asked Questions


What does defending a will mean?

Will disputes or estate disputes arise when a beneficiary or an eligible individual believes that he or she was not fairly provided for in a will and has filed a claim against it. This is what is called contesting a will. However, if an individual believes that the will is invalid and should be struck out, this individual motions to challenge a will. When challenging a will, the validity is investigated to check for fraud, forgery, or other reasons that caused the will to be invalid. Defending a will against such claims is the duty of the executor. According to Legal Match, it is his duty to “prove there was no coercion, undue influence, forgery, or fraud involving anyone receiving assets or property in the will” for it to be proven valid. Defending a will shall require witnesses and their testimonies, supporting legal and medical documents (to prove testamentary capacity), and other supporting evidence.


What is a caveat and what is its role in will disputes?

Estate disputes often begin when a caveat is filed in court. A caveat is a document motioning to prevent the executor of will to obtain permission to administer the estate as outlined in the will. When a caveat is received, it is advised to seek legal counsel from inheritance lawyers for proper guidance on how to proceed in defending a will.


Are there costs involved in defending a will?

Most will disputes involve legal costs, but these are often paid out of the estate. When defending a will, an executor is advised to consult with estate lawyers, who not only provide legal counsel but also assist in the investigation into the will’s validity. These estate lawyers also assist in determining the eligibility of invalidity claims. Note that the executor of will or the court-appointed individual who is tasked to administer the estate is not liable for any legal costs, at least until an outcome has been reached. It is then when the costs will be deducted from the estate.


Do all will disputes end up in court?

Will disputes and estate disputes can be very stressful for all those involved. It often creates tension and risks destroying relationships among relatives, especially when assets and finances are involved. However, not all will disputes need to end badly. In fact, not all of them end up in court. Instead, a mediation is done to reach a satisfying settlement for both sides. A mediation is a controlled negotiation process that is facilitated by a mediator, which is often an estate lawyer to encourage both sides to come to their own resolution. A mediation is also an opportunity to settle without having to go to court. It is a more cost-effective solution, as going to court will require more costs.


How long does it take to defend a will?

One of the primary steps in defending a will is determining whether the claimant or the person contesting the will is legally eligible to make a claim. It also matters if the person is making the claim within the time frame required to do so. In Australia, challenging a will or contesting a will can only be done within six months after the date of the grant of probate or administration or three months from the time an individual has given notice to the estate. From there, estate lawyers can assist in determining how long it will take to defend a will, depending on the validity of their claims.


When defending a will, it is best to seek legal counsel from estate lawyers who are skilled at estate and inheritance laws in Australia. These lawyers are backed by years of experience in dealing with similar cases and coming to a solution that satisfies both parties, operating on a “no win, no fee” basis to ensure satisfactory results.