Home » Defend a deceased estate claim or Will challenge

Defend a deceased estate claim or Will challenge

We defend the estate against claims, so the will the deceased actually made is the one that stands.

You followed the will. You did what you were asked to do. Now someone is claiming against the estate and you are a respondent in court proceedings, while you are still administering the estate, still holding the family together and still grieving. Family provision claims are a normal part of Australian estate law, and as executor you are the respondent whether you wanted the role or not. Being a respondent does not mean you lose. It means you need to know what the claim is actually worth, what your duties are, and how the estate’s position gets defended before you answer anything.

Speak to a lawyer What is included

The claim assessed honestly

You find out early which parts of the claim have merit and which do not, so you are negotiating from knowledge rather than from pressure.

Your own position protected

We advise on the timing of distributions while the claim is live, which is where executors most often expose themselves personally.

The will that stands is the one made

The beneficiaries who were provided for keep their proper share instead of funding a settlement the estate never needed to pay.

What is involved in defending a family provision claim?

When a family provision claim or a will challenge is brought against an estate, the executor answers it on behalf of the estate and its beneficiaries. That means assessing whether the claim has legal merit, gathering evidence about the will, the deceased’s capacity and intentions and the claimant’s actual circumstances, and then deciding whether to defend, negotiate or settle. The executor’s duty is to the estate, which is not the same as conceding whatever is demanded, and getting the timing of distributions wrong during a live claim carries personal exposure.

Speak to a lawyer

What is a family provision claim, and what does it do to the estate?

It is an application to the court for a greater share of the estate than the will provides. If it succeeds, the court changes the distribution. As executor you are the respondent, and the estate generally cannot be finalised while the claim is on foot.

Can a claim be defended if the claimant is clearly eligible?

Yes. Being eligible to apply is not the same as succeeding. The court still has to be satisfied that the will failed to make adequate provision for that person. That is a question about their circumstances and about the estate, not about their category.

Can the estate pay my legal costs of defending?

An executor is generally entitled to be indemnified out of the estate for reasonable costs properly incurred in administering it, including defending a claim. That indemnity is not unlimited, which is why cost strategy is part of the advice from the start.

Can we settle without going to court?

Most family provision claims settle at mediation rather than at hearing. Settling early is often the right answer, but only once you know what the claim is worth. Most executors are pushed into doing it the other way round.

Is the estate being challenged?

We defend executors and beneficiaries against family provision claims and will challenges, from the first letter through mediation and, where it is warranted, to a hearing.

You are being sued for carrying out someone's wishes

Claims often come from people who believe they should have received more, whatever the relationship with the deceased actually was and however clear the will is. As executor you have to defend the estate while you administer it, and you have to do that without conceding provision the deceased never intended and without exposing yourself personally. Every month it runs, the beneficiaries who were provided for are the ones paying for it.

We will assess the claim and advise on the strength of the estate's defence.
We will prepare the formal response and gather the supporting evidence.
We will advise on distributions and the steps that protect your personal position.
We will develop a strategy built to protect the estate and its beneficiaries.
We will represent you in mediation or in court until the claim is resolved.

Is this your situation?

You are the executor, or a beneficiary, and a family member has appeared with a lawyer and a claim. Perhaps someone who had little contact with the deceased for years. The will was clear and the intentions were not ambiguous, and now those intentions have to be defended in the Supreme Court, out of estate funds, in front of the rest of the family. You may already have formal correspondence in your inbox. You may be feeling pressure to settle simply to make it stop. What you do not have is any sense of what a court would actually award, whether the claim has real merit, or what defending it properly involves, and you need all three before you reply to anything.

What's included in your estate defence service

Speak to a lawyer

Claim analysis and a defence strategy.
Defence documentation and court filing.
Evidence gathering and witness management.
Advice on distribution timing and executor exposure.
Mediation, negotiation and court representation.

What an undefended claim costs the estate

Claims that are not properly defended tend to resolve in the claimant’s favour, and often not because the claimant was right. Executors who do not know the process accept settlements they never needed to accept. Many negotiate directly with a claimant with no advice, no sense of what a court would award, and no plan for what happens if the talks fail.

That produces a settlement that pays more than it had to, out of the beneficiaries’ share, and it tells anyone else watching that claiming against this estate works. While it runs, the estate stays frozen, the costs build on both sides, the beneficiaries who were actually provided for keep waiting, and what the deceased set down gets eroded a little at a time.

How we defend the estate

We assess the claim quickly and honestly, including the parts that do have merit, so you know the realistic range of outcomes before you make a single decision. We prepare the estate’s formal response, gather the evidence about the deceased’s intentions and the claimant’s real financial position, and run the matter through mediation or court to a strategy set at the start rather than improvised.

We also advise you on the timing of distributions while the claim is live, because that is where executors expose themselves personally. Most well-run family provision claims settle at mediation, and we take that path where it produces a fair result at a sensible cost. Where a claim does not stand up, we defend it. Either way the estate is represented properly and you are not carrying it alone.

Three steps to resolving the claim

From the first letter to a resolution the estate can live with.

Weigh the claim

We examine the will, the claimant's standing and their actual financial position, and tell you what the claim is realistically worth.

Answer it properly

We prepare the estate's formal response, assemble the evidence of the deceased's intentions, and put the argument in the form the court works with.

Settle or defend

We represent the estate at mediation and, where the claim does not stand up, defend it through to hearing.

Litigators who defend estates, not just administer them

Doing exactly what someone asked of you and being sued for it is a particular kind of unfair. Having your integrity as executor questioned by family, while you are still grieving, is one of the most demoralising positions in estate law, and it is worth saying plainly that the feeling is warranted.

We have defended executors and beneficiaries against family provision claims across a wide range of estates and family situations. We know what the court weighs, what an opportunistic claim looks like once the financial evidence is tested, and where the pressure points in a negotiation genuinely are. We also know the difference between a claim worth resisting and a claim worth resolving early, and we will tell you which one you have.

Our great lawyer guarantee

Six principles we hold to, whatever you bring us and however long it takes.

Take the time

We listen carefully to understand what you want to achieve, then step you through the advice and the documents.

Share our knowledge

We pass on as much as we can, so you can make your own informed decisions.

Stick to our knitting

We only do what we are good at, so you never pay for our learning.

Work as one team

Someone is always available to answer your question or point you the right way.

Fair pricing

A fixed or capped quote for advice and documents, so you do not carry the price risk.

It is your show

We are in it for a front row seat to witness your success, not for our egos.

Had a claim made against the estate?

Send us the claim and a copy of the will. We will tell you what it is actually worth, what your duties are as executor, and how to answer it without exposing yourself.

Speak to a lawyer 1300 654 590