Defending A Will

Not everyone is entitled to defend a Will. Usually the executor or administrator is the correct person to do so. The process is different depending upon whether the Defense required is because someone is Contesting a Will or Challenging a Will. There is a difference.

  • (a) The correct person to defend a Will challenge is either the named executor/s and if there is no named executor/s then the major beneficiary or person named as nominee representing major beneficiaries.
  • (b) The correct person to defend a Will contest (family provision claim) is either the executor to whom probate has been granted or the administrator to whom Letters of Administration has been granted.

In a Will challenge case an executor or administrator cannot claim against himself or herself. It is one of the duties of an executor or administrator to uphold the Will and defend any claim challenging its validity.

However the rules are quite different in cases where someone is contesting a Will (family provision case). An executor in those cases may take off his or her “administration hat” and make a claim for provision or further provision naming someone else (possibly a beneficiary) as Defendant in the family provision proceedings.

When the case is completed the executor puts his or her “administration hat” back on and continues to administer and distribute the estate in accordance with the Will (which may have been amended by the court following the executors family provision claim).

If thee is no Will the correct defendant would be the major beneficiary.

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