Are You an Executor Facing a Will Challenge?
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’re an executor defending a contested will in NSW, understanding your legal duties is crucial to protecting both yourself and the estate.
Your Legal Duties When Defending an Estate
If you have been named in a will or appointed by the court to be the executor of a will or the administrator 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.
Common Challenges Executors Face When Defending a Will
When defending a contested will or estate in NSW, executors commonly encounter:
- Family Provision Order claims from eligible persons who feel inadequately provided for
- Validity challenges alleging lack of testamentary capacity, undue influence, or improper execution
- Disputes between beneficiaries about interpretations of will terms
- Claims of breach of fiduciary duty against the executor
- Pressure from beneficiaries to distribute assets before challenges are resolved
Our experienced wills and estates team at PK Simpson has successfully defended executors against all these types of challenges since 1977, protecting them from personal liability while ensuring proper estate administration.
Family Provision Orders
When 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.
This preservation duty applies from the moment you receive notice of a challenge, regardless of whether you believe the claim has merit.
Exceptions to the Preservation Duty
There are some limited exceptions to this rule, such as where they act on legal advice and receive the consent of the beneficiaries.
Failing to preserve the estate can result in personal liability for the full amount of any successful Family Provision claim, even if you’ve already distributed assets to beneficiaries in good faith.
At PK Simpson, we’ve helped hundreds of executors navigate these preservation requirements since 1977, ensuring they meet their legal obligations while minimizing unnecessary delays in estate administration. Our dedicated estate litigation lawyers provide clear guidance on when distribution can proceed safely and when it must be delayed.
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.
Affidavits and Asset Valuations
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.
Failing to provide complete and accurate information can result in court sanctions, delays in estate distribution, and potential personal liability for the executor.
Expert Assistance with Court Compliance
Since 1977, our experienced estate lawyers at PK Simpson have helped executors prepare comprehensive court documentation, ensuring all required information is provided accurately and on time. We handle all aspects of court compliance, from asset valuations to affidavit preparation, protecting you from procedural mistakes that could jeopardize the estate.
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.
This dual role creates potential conflicts of interest, particularly when defending a will against a Family Provision claim that could reduce your inheritance as a beneficiary.
Applying for Separate Representation
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.
How the Court Manages Dual Roles
The court will typically appoint separate solicitors to represent you in your capacity as executor versus your personal capacity as a beneficiary, ensuring both roles are properly protected.
Expert Guidance for Executors in Dual Roles
Since 1977, PK Simpson has helped executors with dual roles navigate these complex situations effectively. Our team provides strategic advice on when separate representation is necessary and how to manage potential conflicts of interest while fulfilling your fiduciary obligations to the estate and all beneficiaries.
Why Choose PK Simpson to Defend Your Estate?
When you’re an executor facing a will challenge in NSW, choosing the right legal representation is crucial. Since 1977, NSW executors have trusted PK Simpson because:
- 45+ Years of Experience: Our team has been exclusively focused on wills and estates law
- Comprehensive Estate Knowledge: We understand both the legal and practical aspects of estate administration in NSW
- Proven Track Record: We’ve successfully defended hundreds of executors in contested estate matters across NSW
- Personalised Service: Our dedicated client services department provides clear guidance through every step of the process
- Strategic Approach: We work to resolve disputes efficiently while protecting your position as executor and minimizing costs to the estate
Contact our experienced contested wills lawyers on 1300 757 467 to discuss your contested estate matter today.
How PK Simpson Can Help You Defend the Estate
The expert lawyers at PK Simpson have helped hundreds of executors successfully defend estates against challenges while fulfilling their fiduciary duties. Since 1977, we’ve represented executors facing Family Provision claims, validity challenges, and complex beneficiary disputes across NSW.
Our dedicated estate litigation team ensures that all your obligations as executor are met, providing you with comprehensive advice on:
- Asset preservation during contested estate proceedings
- Court documentation and affidavit preparation
- Managing conflicts of interest when you’re both executor and beneficiary
- Responding to Family Provision Order applications
- Defending against validity challenges to the will
- Strategic negotiation and dispute resolution to minimize estate costs
We also work to resolve disputes efficiently through mediation and negotiation where possible, minimizing legal costs to the estate and delays in distribution to beneficiaries.
With over 45 years of proven success in contested estate matters, you can trust PK Simpson to guide you through this challenging process while protecting you from personal liability.
Our team understands the emotional stress executors face when defending a loved one’s will, and we provide compassionate, practical support throughout the entire process.
Call PK Simpson for Expert Estate Defence Advice Today
If you are an executor facing a will challenge in NSW, or you need advice about your duties when a Family Provision Order has been filed, we urge you to contact a firm of lawyers with proven expertise in this area.
How PK Simpson Can Protect You
At PK Simpson, we can help you understand your legal obligations, prepare required court documentation, and defend the estate appropriately while minimizing your personal risk.
Our experienced wills and estates solicitors have successfully represented executors in all types of contested estate matters across NSW.