Defending a claim against a deceased estate

by | Jan 1, 2021 | Blog

defending a claim against a deceased estate

Finding out that you are the executor of a close family member or friend’s Estate can seem like an honour at first but it can often be a painful and thankless task.  No more so than when an eligible person puts in a claim to challenge the deceased person’s estate and their wishes.

As the executor, defending a claim against a deceased estate can be daunting, but with the right advice it can be made a lot easier. It’s likely you want to do everything you can to uphold the deceased person’s wishes, but whilst the law seeks to preserve testamentary freedom (the deceased person’s freedom to do as they please with their estate), the Court also must examine the facts in each circumstance to determine whether or not they will step in and alter an Estate to be distributed differently than what is contained within a Will.

In some circumstances the Court may decide that despite the contents of a Will the deceased had a moral obligation to make some provision for a person and they did not, no matter how good their reason was.

The Court looks at many factors before deciding to alter a person’s Will. They look at factors such as:

  1. Each person’s relationship with the deceased;
  2. Whether they have had a falling out and if so when;
  3. Whether there is or was any financial dependency on the deceased; and
  4. They also look at the person who makes the claim’s ability to support themselves financially.

The next important step is making sure the person making the claim against the estate has done so within the required time period. Section 99 in Part IV of the Administration and Probate Act 1958 (Vic) is clear that any application made to the Court for family provision order must be made within 6 months of the grant of probate being made.

If you are the executor of a Will and find yourself requiring assistance to manage the estate or to manage a disgruntled beneficiary (or non-beneficiary), please contact us today on 5623 5166 or book an appointment online.  We have a team of experienced estate lawyers who can assist you in this challenging and uncertain time.