Defending Estates
We sometimes end up defending a claim on an estate we are involved in. If you are the executor of an estate, or a beneficiary under a will, and someone has made (or threatened) a claim for further provision from the estate, we can act for you to protect the estate and the wishes of the deceased.
The executor’s role
An executor has a duty to uphold the will and to administer the estate in accordance with its terms. When a claim for family provision is made under the
Succession Act 2006 (NSW), the executor must respond to it on behalf of the estate. Until the claim is resolved, the executor should not distribute the estate.
Responding to a claim
Before any proceedings are commenced, a person intending to make a claim will usually write to the executor. It is important to obtain advice at that early stage. We will:
- advise you whether the person is an “eligible person” and whether the claim has merit;
- prepare an affidavit setting out the assets and liabilities of the estate and the circumstances of the beneficiaries;
- gather evidence of the deceased’s reasons for making the will in the way they did; and
- respond to the claimant’s solicitors on your behalf.
Mediation and settlement
The Court requires the parties to attend mediation before a family provision claim proceeds to hearing. Most claims settle at or shortly after mediation. We prepare thoroughly for mediation so that the estate is in the strongest possible position to negotiate a fair and cost-effective outcome, and we advise you on whether any proposed settlement should be accepted.
Costs
The costs of defending a claim are generally paid out of the estate, but the Court has a wide discretion about costs. An executor who defends a claim unreasonably may be ordered to pay costs personally. We give you frank advice about the risks so that decisions about the conduct of the defence are properly informed.
What we do for you
We:
- Advise executors and beneficiaries on the merits of a claim and the likely outcome;
- Prepare and file the estate’s evidence in the Supreme Court;
- Conduct negotiations and mediation on behalf of the estate; and
- Arrange a barrister to advise and appear at any hearing.
