Defending a contested will or estate

You should be aware of the different types of challenges that can be made for a will, including challenges to the validity of the will, and Family Provision Orders.

If you have been named in a will or appointed by the court to be the executor of a will or the adminstrator of an estate, you may have certain duties to defend the estate or attempt to uphold the terms of the will where a challenge has been made. There are a number of duties that relate to challenges, such as providing relevant information on request of a court.

Family Provision Orders

Where an executor receives notice that an application for a Family Provision Order has been made, they are under a duty to ensure the estate is preserved until a determination is made. This means they cannot distribute any part of the estate, such as property or other assets. If this duty is not followed, they may be personally liable for any loss of the applicant. There are some limited exceptions to this rule, such as where they act on legal advice and receive the consent of the beneficiaries.

Assisting the Court

The executor also has a duty to provide information to the court when requested concerning the deceased’s estate. The court may require information about the deceased’s financial affairs, or any documents that may be helpful in making determinations of family provision orders. For example, the executor may have access to documents that help to determine why a certain person was not accounted for in a will. The only exception to this duty is where the executor is under a legal obligation to keep the information confidential.

This will also include providing a written affidavit to the court detailing the deceased’s assets and liabilities, including valuations of any property. These will need to be provided both at the time of death, and on any application for a family provision order.

Dual Capacity

It is not uncommon for the executor of a will to also be a beneficiary of the will. This is an example of where the executor is acting in more than one capacity. Although normally separate representation is not deemed appropriate, where the executor has dual roles they must apply to the court for separate representation. This is in order to prevent any conflict of interest that may arise between their duties.