Defending a Valid Will — Legal Protection for Executors & Beneficiaries

Who this page is for

When a valid will comes under attack

A will may be challenged even where there is no substantive basis for the challenge. Family members who are disappointed with their inheritance, who feel excluded, or who hold long-standing grievances may bring proceedings without strong evidence. Others may genuinely believe — but be unable to prove — that something improper occurred.

As the person defending the will, your role is to establish, on the balance of probabilities, that the will is valid and should be admitted to probate. This means demonstrating that:

• The will-maker had testamentary capacity — they met the Banks v Goodfellow test at the time of execution
• The will-maker knew and approved the contents of the will — they understood what they were signing
• The will-maker acted free from undue influence — no one coerced or overbore their will
• The will was properly executed — it was in writing, signed by the will-maker, and witnessed by two people present at the same time

The grounds of challenge you may face include:

Evidence that strengthens a defence

The strength of a defence depends heavily on the quality and availability of contemporaneous evidence — records created at the time the will was made, not recollections reconstructed years later. The following categories of evidence are particularly valuable in rebutting challenges:

Procedure — defending a will challenge step by step

The procedural path for defending a will challenge depends on whether probate has been granted and the nature of the challenge. The following is a general overview of how these matters typically progress:

1. Identify the challenge early. A caveat may be lodged before probate, or proceedings may be commenced after a grant. In either case, early identification allows you to secure evidence and obtain legal advice before taking any irreversible steps. Check probate registries regularly if you anticipate a challenge.
2. Preserve and gather evidence immediately. The drafting solicitor's file should be requested straight away. Medical records, earlier wills, witness details, and relevant correspondence should be collated. Do not discard or alter any documents — the duty of disclosure in probate litigation is stringent, and destruction of documents can lead to adverse inferences or costs orders.
3. Assess the strength of the challenge candidly. Not every challenge has merit, but not every challenge can be dismissed. An early, honest assessment of the challenger's evidence — and the strength of your own — is essential to deciding whether to defend, negotiate, or consider settlement. Overconfidence in a weak case, or capitulation in a strong one, both carry costs.
4. Consider probate in solemn form. Where a challenge is anticipated, the executor can apply for probate in solemn form rather than common form. Solemn form requires a court hearing and notice to all interested parties, but it provides greater finality because it binds everyone who was given notice. It is more expensive and time-consuming, but it may prevent later litigation.
5. Engage with the challenger (with legal advice). In many cases, early engagement can resolve the matter. A challenger who understands the strength of the evidence supporting the will may withdraw or agree to a negotiated outcome. Conversely, a challenger with strong evidence may prompt consideration of a commercial resolution. All communications about the dispute should be through your legal representative once proceedings are on foot or anticipated.
6. File a defence and any cross-claim. If the matter proceeds to litigation, a formal defence must be filed addressing each allegation. In appropriate cases, a cross-claim may be made — for example, seeking an order that the challenger pay costs on an indemnity basis if the challenge is baseless or pursued vexatiously.
7. Prepare for mediation or trial. Most probate disputes are resolved before trial, often at mediation. However, preparation for hearing should proceed on the assumption that the matter may go to trial — this includes preparing witness statements, obtaining expert evidence (medical, forensic document examination, or handwriting analysis) if needed, and briefing counsel experienced in succession law.

Costs — who pays to defend a will?

Costs are a central concern in defending a will challenge. The general principles are:

• Executor's indemnity: An executor who acts reasonably in defending a will is generally entitled to be indemnified from the estate for their legal costs — even if the defence is unsuccessful. However, this indemnity is not automatic. If the executor acts unreasonably — by defending a will that was clearly invalid, or by prolonging litigation without proper basis — they may be ordered to pay costs personally.
• Costs follow the event: The general rule in litigation is that the unsuccessful party pays the successful party's costs. If the challenger fails to prove their case, they may be ordered to pay the estate's costs of the defence. If the challenger succeeds, the estate may be ordered to pay their costs.
• The probate exception: Where the testator's own conduct or the circumstances surrounding the will caused the litigation — for example, where the testator's behaviour, ambiguity in the will, or failure to obtain a medical assessment triggered the challenge — the court may order that costs be paid from the estate rather than by either party personally. This is the "probate exception" to the usual costs rule and is available in both NSW and Queensland.
• Judicial advice on costs: An executor who is uncertain whether to defend can apply to the court for judicial advice — an order that the executor is justified in defending (or not defending) the proceedings. If the court approves the course of action, the executor is protected from personal liability for costs.

NSW vs QLD — Key differences in defending a will

Common mistakes when defending a will

• Destroying or altering documents. Never discard drafts, notes, correspondence, or earlier wills. The duty of disclosure in probate litigation is rigorous, and destruction of documents can lead to adverse inferences — the court may assume the destroyed documents would have harmed your case. This applies even to documents you consider irrelevant.
• Communicating with the challenger without legal advice. Statements made in anger, frustration, or even in an attempt to explain can be used against you — as admissions, as evidence of motive, or as evidence of consciousness of a weakness in the will. All communications about the dispute should be channelled through your legal representative once proceedings are on foot or anticipated.
• Distributing the estate while a challenge is pending. If you distribute assets and the will is later set aside, you may be personally liable to restore the estate to its proper beneficiaries. Distribution should await resolution of the challenge or be undertaken only on legal advice with appropriate protections — such as obtaining releases or indemnities from the recipients.
• Assuming the challenge will fail because the will "looks fine." A will that appears regular on its face may still be vulnerable to a capacity challenge if the testator's medical history raises questions. A testator can appear perfectly lucid during a short solicitor appointment while suffering from cognitive impairment that affects their testamentary decision-making. Seek an honest assessment of the risks.
• Failing to secure the solicitor's file promptly. Solicitor files can be misplaced, destroyed after a retention period (typically 7 years from the date of the last action), or become unavailable. Request the file immediately — it may be the single most important piece of evidence in your defence.
• Assuming the costs of defence will always be covered by the estate. While executors are generally entitled to be indemnified, this is not automatic. An executor who acts unreasonably — by defending a clearly invalid will or by prolonging litigation — may be ordered to pay costs personally. Obtain legal advice on the merits early.

What to do immediately if a will you support is challenged

1. Do not distribute any estate assets. If you are the executor and you have not yet distributed the estate, stop. Distribution during a challenge creates personal liability risk
2. Contact the solicitor who drafted the will. Request the complete file — attendance notes, correspondence, earlier drafts, the execution copy with attestation clause. Do this before the file is destroyed under the solicitor's document retention policy
3. Identify the witnesses. Locate the two people who witnessed the will's execution. Obtain their contact details. Consider asking them to write down their recollections while memory is fresh
4. Gather medical records. If capacity is likely to be challenged, start gathering the testator's medical records from the period surrounding the will's execution — GP, specialists, hospital, aged care
5. Collect earlier wills and estate planning documents. Locate all earlier wills, codicils, and estate planning documents. These show the pattern of the testator's intentions over time
6. Get independent legal advice immediately. Before responding to the challenger, before filing anything in court, before taking any action that might affect the estate — speak to a specialist estate litigation lawyer

Frequently asked questions

Related services and resources