Defending a Will means you are legally responding to a claim made against the estate. This situation typically arises in one of two ways:

1. A Challenge to the Will's Validity: Someone may claim the Will is legally invalid due to issues like fraud, forgery, or the deceased's lack of mental capacity. In this scenario, you are defending the legitimacy of the document itself.

2. A Contest of the Will's Provisions (Family Provision Claim): An eligible person may argue that the Will did not make adequate financial provision for them. Here, you are defending the distribution of assets as set out by the deceased.

As an executor, one of your primary duties is to uphold the terms of the Will against these claims.

When defending a Will, your position is based on upholding the instructions left by the deceased. The grounds for your defence will depend on the type of claim being made against the estate.

• If the Will's validity is challenged, your defence will focus on proving that the Will was properly created and signed, and that the deceased was of sound mind and acting freely.

• If a Family Provision Claim is made, your defence will involve showing that the deceased fulfilled their moral obligations and that the distribution in the Will is appropriate, considering the needs of all beneficiaries.

It is your responsibility to ensure the deceased's final wishes are respected and carried out as intended.

The primary person responsible for defending a Will is the executor. The executor is the individual(s) named in the Will to manage the estate. Their fundamental duty is to collect the assets, pay any debts, and distribute the estate according to the Will's instructions. When a claim arises, defending the Will is a key part of this duty.

Beneficiaries also have a right to participate in defending the Will, as any successful claim could reduce their inheritance. Beneficiaries can either support the executor's defence or be separately represented by their own lawyers.

If you receive notice of a claim against the estate, the first and most critical step is to seek advice from a lawyer who specialises in will disputes. Acting quickly is essential.

We will guide you through the process, which generally involves:

1. Reviewing the Claim: Assessing the nature of the claim and the evidence provided by the person making it.

2. Gathering Evidence: Collecting documents and witness statements to build a strong defence. This may include financial records, medical reports, or statements about the deceased's relationships and conduct.

3. Filing a Defence: Formally responding to the court, outlining your position.

4. Negotiation and Mediation: Participating in settlement discussions or a formal mediation to try to resolve the dispute without a court hearing. Most inheritance disputes are resolved at this stage.

The evidence required depends on the claim.

• For a Challenge to Validity: Evidence may include statements from the witnesses to the Will, medical records confirming the deceased's mental state, or a solicitor's file notes from when the Will was prepared.

• For a Family Provision Claim: Evidence will focus on the financial circumstances of the claimant and the other beneficiaries, the nature of the relationships with the deceased, and any contributions made to the estate.

Your will dispute lawyer will identify and gather the specific evidence needed to support your case.

As an executor defending a Will, you have several important duties:

• Act in the Best Interests of the Estate: Your primary obligation is to preserve the estate's assets and uphold the deceased's wishes.

• Remain Neutral: While you must defend the Will, you should not favour one beneficiary over another. Your role is to act impartially for the benefit of the estate as a whole.

• Provide Information: You must provide all relevant information and documents about the estate to the court and the other parties involved.

• Attempt to Resolve the Dispute: You have a duty to try to settle the claim where it is reasonable to do so, to avoid unnecessary legal costs that would diminish the estate.

In most cases, if you are the executor defending a Will, your legal costs are paid from the assets of the estate. This is because you are carrying out your legal duty to uphold the Will.

If you are a beneficiary defending your inheritance, you may have to pay your own legal costs initially. However, the court has the power to make orders about how costs are paid at the end of the case, and it may order that your reasonable costs also be paid from the estate, particularly if your involvement was helpful to the court.

You are not forced to settle a will dispute, but as an executor, you have a duty to act reasonably. If the person making the claim has a strong case and offers a reasonable settlement, it is often in the best interests of the estate to accept it. Settling avoids the risk, stress, and high cost of a final court hearing.

We will provide you with advice on the strengths and weaknesses of the claim and help you decide whether a settlement offer is reasonable and should be accepted.