Defend An Estate

What Does "Defending an Estate" Mean?

If you're an executor or administrator and someone makes a Family Provision Claim or challenges the validity of the Will, you're responsible for defending the estate on behalf of the beneficiaries. That means responding to the Court application, gathering evidence, attending mediation, and — if the matter doesn't settle — appearing at a hearing.

It's a position most executors don't expect to find themselves in, and it carries both legal duties and personal exposure. We act for executors across NSW to take the procedural and strategic burden off their shoulders.

The Executor's Role in a Dispute

An executor's role in a dispute is more nuanced than it sounds. You're not just "defending" — you also have a duty to deal fairly between competing beneficiaries and to give the Court accurate information. In practice that usually means:

• Putting on evidence about the estate — what's in it, what it's worth, what debts and expenses are owing
• Providing factual background on the deceased's wishes, the relationships with claimants and the existing beneficiaries' circumstances
• Engaging genuinely with mediation — most matters settle there
• Defending the Will where it's right to do so, while not taking partisan positions the Court will see through
• Keeping the beneficiaries informed about the progress of the dispute

In some cases, particularly small estates or strong claims, the executor may take a "neutral" stance and leave the contest to the affected beneficiaries. We advise on that strategic call at the start of the matter.

Costs — Who Pays?

One of the first questions every executor asks: do I have to pay for this out of my own pocket? Generally:

• The estate usually pays the executor's reasonable legal costs of defending a claim — the executor is indemnified out of the estate under longstanding equity principles
• The Supreme Court can order otherwise, particularly if the executor has acted unreasonably or with a personal conflict of interest
• You shouldn't have to fund the defence personally if you act on legal advice and engage with the process in good faith

We discuss likely cost outcomes at the very first meeting and offer fixed fees wherever possible for clearly-scoped stages of work.

Evidence That Wins Defences

Most claims are won or lost on the quality of the evidence. As your lawyer, we'll help you assemble:

• The deceased's full asset position and any liabilities (including super and life-insurance entitlements that may or may not form part of the estate)
• Evidence of the deceased's wishes — file notes from the solicitor who drafted the Will, contemporaneous letters or recordings, and previous Wills showing a settled testamentary pattern
• Evidence about the claimant — their financial position, conduct toward the deceased and existing provision made for them
• Evidence about other beneficiaries — their needs and competing claims on the estate
• Notional estate evidence where relevant — what assets, if any, were moved out of the estate before death

Why Engage a Specialist?

Our principal George Paltos is an Accredited Specialist in Wills & Estates and has acted for executors in the Supreme Court of NSW and the High Court of Australia. We handle the procedural burden — affidavits, subpoenas, mediation preparation, hearings — and protect you from the personal-liability risk that comes with the executor role.

Common Questions About Defending an Estate

Who pays my legal fees if I'm an executor defending a claim?

An executor is generally indemnified out of the estate for the reasonable costs of defending a claim. The Supreme Court can order otherwise if the executor has acted unreasonably or with a personal conflict of interest. You should not have to fund the defence personally if you act on legal advice and engage with the process in good faith.

Can I distribute the estate while there's a dispute?

No — not without legal advice. Distributing assets while a Family Provision Application is on foot, or before the 12-month limitation period expires if no claim has yet been made, can expose you personally to liability. We advise on safe interim distributions where appropriate.

What if I don't want to be the executor any more?

An executor can renounce the role before they have "intermeddled" with the estate (taken any active step in administering it). Once you've started, you generally need an order of the Supreme Court to be released. We can advise on whether renunciation or removal is appropriate.

Can I be personally liable as an executor?

Yes, in limited circumstances. Liability typically arises from distributing the estate prematurely, failing to defend a claim properly, breaching duties to beneficiaries, or acting with a conflict of interest. Following legal advice substantially reduces this risk.

Should the executor stay neutral or actively defend the Will?

It depends on the strength of the claim, the size of the estate and the position of the existing beneficiaries. For strong family provision claims against small estates, a neutral position may be appropriate. For weak claims or where the Will reflects a long-settled testamentary pattern, active defence is usually warranted. We advise on the strategic call at the start of every matter.

How long does defending an estate take?

Most matters resolve at mediation within 6 to 12 months of the claim being filed. Cases that proceed to a full hearing in the Supreme Court typically take 18 months to 2 years.