What we do, in a few paragraphs
We are often asked by Executors of Wills to help them to defend the Wills made by a recently deceased member of their family. That is what we often do.
Executors need excellent legal advice whenever another person tells the Executors that he intends to make a claim upon the estate of the deceased person.
We have many years of legal experience advising Executors how they may defend Wills. In some cases we represent Executors in the Supreme Court cases. We help them to defend and to uphold the Will of the deceased person. We sometimes help Executors to settle such claims upon terms that are acceptable.
Why we do what we do
Typically, if someone makes a Will and dies then his wishes are respected by his family. His Executor then carries out his wishes and gives his estate to the persons who are named as the beneficiaries of the Will.
Our experience is that most persons will respect the last wishes which are written in the Will of a deceased person.
Sometimes there are one or more persons who, for one reason or another, believe that the Will of the deceased person should not be respected and they decide to challenge that Will. Such persons have the intention to get something from the estate, usually money, which the Will of the deceased person left to other persons.
What the Law of New South Wales says
The Laws are actually very, very complicated.
It often takes many years of practical legal experience working with the Laws to develop a good understanding of just what they say and how they should be applied.
The Laws do give a lot of discretion to Judges of the Supreme Court.
For one example, the Judges are sometimes allowed to give a person ‘extra time’ to bring a claim against the estate of a deceased person.
For a second example, the Judges are sometimes allowed to treat the estate of a deceased person as being artificially expanded beyond what the deceased person actually owned as at the date of his death so as to include within the estate of the deceased person some property that the deceased person formerly owned but may have given away before dying. Then, based upon the size of the bigger estate, the Judge may give some of it to the person who has challenged the Will of the deceased person. In some instances the ‘notional estate’ of a deceased person can be shared with a challenger of the Will, not just the ‘actual estate’ of the deceased person.
For a third example, the Judges are allowed a wide discretion to deny a claim made against an estate if the Judge is of the opinion that the person making the claim is rich enough already and has no real need of extra monies from the estate or if the person estranged himself for no good reason from the deceased person.
For a fourth example, the Judges are allowed a wide discretion to choose just how much money of a deceased person’s estate is to be paid to a successful Will challenger.
For a fifth example, the Judges may deny a claim which might ordinarily have good prospects if the estate is too small to be able to be widely shared and if the financial needs of the beneficiary named in the Will are, in the opinion of the Judges, more pressing and deserving of protection than those of the person who has made the claim.
Very experienced Solicitors and Barristers are able to recognise that such wide discretions exist within the Law, they are able to craft arguments both for an against the use of such discretions in particular cases and they are able to advise their clients about what evidence is required to be presented to the Judges in order to get the best result for their clients.
How we, as solicitors, can help you to defend a Will
We could write a book about all the different things which we are able to help Executors to do in order to defend a challenge to a Will.
In order to give you some idea of what we can do, here are over twenty examples:
- We can prepare one or more Affidavits for the Executors in order to satisfy the formal requirements of the Supreme Court Rules and the Supreme Court Practice Notes which impose certain legal obligations upon Executors. Judges expect Executors to do certain things and to supply certain information. We advise Executors exactly what they need to do and help them to do whatever must be done, and to do it ‘on time’.
- We can check whether or not the challenge to the Will is made within the prescribed time limit or outside of it. If it is outside of the time limit we can advise the Executors upon the best strategies to be adopted to get the case thrown out of Court. We can advise whether or not the person who is challenging the Will has a reasonable chance, based upon the evidence available, of getting the Judge to give an extension of time for the continuation of his case.
- We can check if the person who is challenging the Will is legally eligible to make any claim upon the estate of the deceased person. Not everyone is legally an ‘eligible person’ who is legally entitled to challenge another person’s Will. We can advise an Executor if there is enough evidence about the Will challenger’s legal ‘eligibility’ and if the Executor may be able to get the case dismissed or not.
- We can advise Executors about how the legal costs of the case will be calculated, about who is liable to pay them, about what the Judges usually decide has to be paid by the Will challenger if his case is dismissed and about what the Judges usually decide has to be paid by the Executor if the Will challenger wins the case or gets a settlement figure.
- We advise Executors how to find the money to pay the legal costs and where it may come from, such as if they have to pay the legal costs out of their own pockets or if they may recover or obtain the costs from the estate of the deceased person.
- We advise the Executors about Court procedures and rules, about Court timetables and Court hearings when specific directions are given for the filing of documents and the conduct of the case, both well before it gets to Court and when it gets to Court.
- We advise Executors about Mediation Conferences, such as when, where and by whom they are held, about who pays what costs for them, about what legal representation they are entitled to have, about what normally happens at them, about who may attend them, about what obligations are imposed upon the Executors when they attend them, about what tactics may or should be adopted in order to maximise the chances of getting a satisfactory outcome from such Conferences, about what they can say, about what they can expect the Court officer to say, about what the other persons in attendance are likely to say, and about what they, as Executors, can do to minimise the chances of wasting time at such Conferences and about how such Conferences can often be used to wrap up and complete the case of the person who has challenged the Will upon terms which may be satisfactory to everyone involved.
- We advise Executors about the range of legal costs that may be incurred in the defence of a Will, about how the legal costs of the Will challenger are likely to be calculated, about how the Executor’s own legal costs will be calculated, about the Court Rules that apply to the awarding of legal costs are likely to apply to both them and to the person bringing the case, about the attitudes normally taken by Judges towards Executors who may be thinking of running up legal costs in an outrageous manner, about how Judges can ‘cap’ the legal costs of both a Will challenger and of an Executor, about how Judges can place limits upon the legal costs payable to a successful person who challenges a Will and about how Judges can place limits upon the amount of legal costs which an unsuccessful Executor may recover from the estate of the deceased person.
- We advise Executors what type of ‘Legal Costs Orders’ are normally made by Judges, about what ‘ordinary legal costs’ mean, about what ‘party / party legal costs’ mean, about what ‘indemnity legal costs’ mean and about their legal rights to receive an indemnity from the estate of the deceased person and how those rights may be curtailed by their conduct (if it is unsatisfactory or wrong) and by Judges.
- We advise Executors about how the Rules for the conduct of Court cases allow for effective tactical ‘Offers of Compromise’ to be made which can throw fear into the hearts of a person who challenges a Will and his legal team.
- We advise Executors about the merits of and the tactics for settling claims and / or defending them.
- We advise Executors what Evidence is required to successfully defend a Will challenge case.
- We advise Executors how their Evidence can be gathered by us, which witnesses evidence should be taken from, how to get witnesses to go to Court to give evidence to support the case, how and when we can prepare Affidavits for those witnesses to sign and how those Affidavits can be read in Court to supply the Judge with the Evidence he will need to rely upon to either minimise or dismiss the claim upon the estate of the deceased person.
- We advise executors about the relevant Laws of Evidence and how they will be applied to the Affidavits that will be supplied by all witnesses and the testimony which will be given by all witnesses in the witness box.
- We advise Executors which witnesses will need to go to Court, and which will not need to go to Court, to give evidence in the witness box and be likely to be cross-examined by an opposing Solicitor or Barrister who will be representing the person who is challenging the Will of the deceased person.
- We advise Executors about what deficiencies there are in the evidence of the person who has challenged the Will of the deceased person and how those deficiencies can be used to embarrass the challenger in the witness box at the Court and show up the challenger as being either a liar or a person who has mislead the Judge about the true facts that the Judge should have been given by the challenger.
- We advise executors which Barristers are very experienced, which are often successful, which are the most competent to handle Will ‘defence cases’, what they are likely to charge in fees, how their legal fees will be calculated and what has to be done to engage the services of one or more good Barristers to help with the case. We prepare Briefs for Barristers in order to help Executors to get good quality legal advice before they go to Court, to get help to settle those claims which are best settled, to get help to prepare the necessary evidence to defeat those claims which have no merit and which should be defeated and to get an excellent advocate for them at the Court who can help to present their case and to make convincing Submissions to the Judge who hears the case.
- We explain to Executors how the relevant Laws apply to their cases, how we can help them to either settle and / or defend a claim against the estate of the deceased person, how they may be able to ‘whittle down’ an exaggerated or unmeritorious claim or get it dismissed by a Judge or settled ‘out of Court’ for a relatively small amount, what their prospects are for a successful defence of a claim against an estate, what they are expected to do to respond to a claim against an estate and what they can expect to receive as help from a good Solicitor and / or a good Barrister.
- We give “second opinions” to Executors who already have engaged another Solicitor to help them with a case. This allows the Executors to see if it is likely that their present Solicitor is doing everything which he should normally be doing to help them, to see if their present Solicitor has overlooked anything which may be very important, to see if their present Solicitor has or has not gathered and presented the Evidence upon which the Executors intend to rely in an effective and convincing manner and to see if their present Solicitor has properly explained to them what they really need to know in their circumstances.
- We give help to other Solicitors who are already providing legal services to Executors. We ‘back them up’ with legal and tactical advice, with ideas for gathering and presenting Evidence, with Laws, Case Reports and with legal documents that they can use. We are able to consult with them, and ‘boost’ their legal services to Executors. We can spot potential mistakes that they may have made or risk making and give them guidance to achieve satisfactory outcomes for their clients.
- If an Executor engages our legal services and we foresee that his legal costs will be likely exceed $750 we provide the Executor with a written Costs Agreement and a written Costs Disclosure Notice. These documents are easy to read because they are written in plain English, they are set out in a logical manner, they are very comprehensive and they explain how the legal fees will be calculated, when they have to be paid, who has to pay them and what the likely range of legal costs is probably going to eventually be. Such documents are provided to the Executor with a plainly written covering letter which explains all the things which the Executor is normally going to want to know from a Solicitor before he engages the services of a Solicitor.
- We can explain, in a way that Executors are able to understand, very complicated Laws and exactly how they can be expected to apply to the very case which the Executors may have to face, settle or defend.
- We prepare all sorts of legal documents to help Executors to prepare and defend such cases including written Chronologies of relevant historical facts, written Submissions for the Judges, written Lists of Affidavits to be relied upon to defend the case, written Lists of Reported Court Decisions which are ‘Legal Authorities’ which will guide the Judges to make correct decisions, written Lists of the Legal Issues and Affidavits by the Executors and by their witnesses.
DEFENDING A WILL – Dealing with some common misunderstandings, No. 1
Over the years it has become apparent to me that many persons have some misunderstandings concerning the laws which apply in the state of New South Wales when they need to defend a Will.
In this short article I identify one common misunderstanding. I also provide some guidance to enable you to learn what the Law actually says. Then I give some guidance which may be helpful.
The issue of a Statement in the Will
Does a statement in the Will which identifies gifts already made to a family member protect the estate from more claims by that family member?
There may be an elderly couple who live in Sydney who have two sons. The Will of the female may contain a clause which says this:
“I declare that I have made no provision in this my Will for my son Frederick as my husband has made adequate provision for him during his lifetime by making him a gift of one million dollars ($1,000,000.00) and by giving him the then family business”.
In the Will of the male there may be a provision which says the same type of thing.
The Wills may then say that when both the parents die their entire estates are to go to the other son, called Robert.
The parents of Robert may plan that he should inherit both estates which, when combined, have a value of about $2.5 million or more.
You may wonder whether those provisions in the Wills of the parents of Frederick and Robert are adequate to ensure that Frederick would be unable to successfully challenge the Wills of his parents.
What the Law says
The Law of New South Wales says these things:
- If Frederick is a son of the male and the female then when they die he will be a person who is eligible to challenge the Wills of his parents.
- If Frederick wishes to do so, and he is being truthful, he may deny that he was ever given one million dollars by his father.
- If Frederick wishes to do so, and he is being truthful, he may also deny that he was ever given the family business by his father.
- If Frederick believes that he is in need of a legacy from the estates of his parents when his Will challenge case gets to be heard by a Judge of the Supreme Court then he may be (not ‘must’ be) given a legacy of a sum of money from one or both of those estates if he can present a “good case” to the Judge.
- For example, Frederick may say something like this to the Judge,
- “I agree I got very generous gifts from my parents. I had a lot of bad luck after that. My wife divorced me and she took a big percentage of my wealth in a property settlement. The business went downhill and then bust during a financial crisis which was not my fault. I have had poor health, could not earn a living and spent all my savings upon my living expenses. Now I am quite poor. I need money to buy a new home of my own and I need some more money for my medical and living expenses. I want that money from the estates of my parents. Please give it to me.”
- The Law says that, while the views of the deceased person as expressed in his statements must be given weight by the Judge, they do not force the Judge to decide against a Will challenger.
- The Law says that the question (of whether to decide that a Will challenge is to succeed or to fail) is always for the Court to decide. It will decide whether, in all of the circumstances, the Will challenger has been left without proper provision for his (or her) proper maintenance, bearing in mind all of the relevant considerations which the Law says are to be taken into account.
A Solicitor with some years of good and practical experience in the defence of Court cases when Wills have been challenged could certainly help the parents (whilst they are still alive) and their other son, Robert, (after the death of his parents) to defend the Wills of the parents or to settle such a Court case.
There are a good number of practical suggestions which the Solicitor could make to lessen the prospects of Frederick’s success with a Will challenge case, and possibly to entirely defeat it.
The help which a Solicitor may provide to you
Those suggestions may include:
- Better wording for the Wills of the parents.
- The drafting of very carefully written signed Statements which the Law will allow the Executors of the Wills of the parents to present as evidence to the Judge during a Will challenge court case hearing, to properly explain their reasons for not leaving any inheritance to Frederick.
- The collection of documentary Evidence, and the preservation of that Evidence to ‘back up’ the Executor’s defence of any Will challenge case, and in particular to actually forensically prove the accuracy of any statements which the parents have put into their Wills about the giving of money, businesses or other wealth to Frederick.
- Other actions which the parents could take, whilst alive, to transfer some of their estates to their son Robert before they die.
- Advice to the parents about the pros and cons of property transfers whilst they are still alive and the legal effectiveness of any such transfers.
- The type of Evidence which the Executor of the Wills is going to need to find and present to the Judge so that the Executor will have a good chance to defend the Wills.
- Advice to the Executor of the Wills concerning what the Law says are the relevant facts and considerations which a Judge will want to know about when he considers the case of a Will challenger.
You may contact us for help
If you would like to receive legal advice which is tailored to your own circumstances and which would help your Executor to defend your Will then please feel welcome to contact us.
If you are an Executor of a Will and you anticipate that the Will is going to be challenged, or if it has already been challenged, and you would like to receive some legal advice about what the Law says and about what are the things which you can or should do to uphold the Will or to settle a claim then please feel welcome to contact us.
We may be contacted at Cronulla, Helensburgh and Thirroul in the state of New South Wales.
You may telephone us on these numbers:
(02) 4294 2076 or
(02) 4267 3111 or
You may email us. Send your email to:
We look forward to hearing from you.
If these are type of legal services which you may wish to receive, please feel welcome to contact us. We may be contacted by telephone on either (02) 4294 2076 or (02) 4267 3111 or (02) 9523 6031 or by facsimile at 02 4294 2238 or by email.
You may have conferences with us at either Thirroul, Helensburgh or Cronulla.
We look forward to hearing from you.