I Am An Executor And Someone Is Threatening To Challenge The Estate – What Should I Do?

Article by Charlotte Black – Associate

Being an executor is already a task that comes with significant stress and worry.  However, what if you are then contacted by someone who is threatening to challenge the Estate you are the executor of, alleging that they have not been provided for sufficiently under the Will.

If this occurs, you should immediately seek legal advice.  This article will provide you with guidance on what you should expect as part of the process when someone challenges an estate.

 

Time limits

The first and possibly one of the most important things to note is that there are time limits on challenging an estate.

Generally speaking, a person has 6 months from the date that you received the Grant of Probate to file proceeding in a court to challenge an estate.

However, this is certainly not a hard and fast rule.  There are circumstances in which someone may be entitled to challenge an estate after this six-month period has expired.  They will need to show that there is a reason why they did not bring their challenge against the estate during that six-month period.  An example would be that they only learned of the deceased’s passing after the six-month period had expired. In those circumstances, they would need leave or permission of the court to bring the claim.

 

Is the person entitled to bring a claim?

It is important to keep in mind that not all people are entitled to bring a claim against an estate.

The Administration and Probate Act which is the legislation that governs a person’s ability to challenge an estate, provides a list of people who may be eligible to challenge an estate.  These are called ‘eligible persons.’

Examples of eligible persons may include:

1. A spouse or domestic partner of the deceased;
2. A child of the deceased;
3. An adopted child of the deceased;
4. A step-child of the deceased;
5. A person who believed the deceased was their parent;
6. A former spouse or domestic partner of the deceased;
7. A caring partner of the deceased;
8. A grandchild of the deceased;
9. A spouse of a child of the deceased (where the child dies within one year of the deceased’s death); and
10. A person who was a member of the deceased’s household at the time of the deceased’s death.

This is a very broad list so careful attention must be paid to whether a person in fact entitled to bring a claim.  You should seek legal advice to determine if the person threatening to challenge the estate is entitled to do so.

 

Is the person entitled to further provision from the estate?

If the person is an eligible person, the question then to consider is whether this person has already been adequately provided for in the Will and whether this is sufficient or, if they have not been provided for in the Will at all, should they receive a share of the deceased’s estate.

In assessing this question, the court may consider a number of factors including the following:

1. What does the Will say?
2. Did the deceased leave any reasons why they made their Will the way they did? This might include a letter signed by the deceased or a handwritten note from the deceased.
3. What was the nature of the relationship between the deceased and the challenger? This would include determining the length of that relationship.
4. What are the financial circumstances of the challenger? This would include considering what assets they have, what debts they have and what their earning capacity is?
5. Did the challenger do anything to increase the value of the deceased estate? This might include looking at whether the challenger gifted any assets to the deceased or gifted the deceased any money?
6. Did the challenger make any significant contribution to the deceased’s welfare? This would include things such as the challenger being a carer for the deceased, providing them with companionship and so on.
7. What are the health circumstances of the challenger? The courts often look at what health conditions the challenger has as this can have an impact on their long-term earning capacity and financial position.
8. How old is the challenger?
9. Did the challenger do anything to decrease the value of the estate? This might be because the deceased has already given them significant financial assistance, gifted them assets and so on

The important consideration to keep in mind is that the above list is also applied to the beneficiaries of the estate and a comparison is undertaken to compare the position of the beneficiaries provided for in the Will as compared to the challenger.

 

What should I do next?

If someone is threatening to challenge an estate, it is important that you seek immediate legal advice.  Ignoring the challenger will be to your detriment and may lead to adverse consequences in any court proceeding, including being ordered to pay the challenger’s costs.

If you require special advice on defending a claim against an estate, please contact Mr Richard Mackenzie or Ms Charlotte Black on (03) 8621 1000 (our Melbourne office) or (03) 9331 1144 (our Essendon office) or via email at advisors@emlawyers.com.au.