Defending a will

Mike and Judy (not their real names) inherited a large estate including a home in Sydney.

 

A number of ‘disgruntled’ relatives in Europe who had not seen the deceased for many years filed a claim in the Supreme Court seeking to set aside the last will and testament of the deceased.

 

A previous will, the penultimate will, had left the estate to those relatives. If the more recent will was set aside or declared invalid the relatives in Europe would inherit the estate.

 

The plaintiff, acting as attorney for various family members in Europe, claimed that the deceased had been subject to duress, had been unduly influenced and lacked capacity, that is understanding, when the last will was executed.

 

While we were confident of defending the claim the claimants were effectively outside the jurisdiction of the court and the plaintiff had limited means. A real concern was the cost to the defendants of defending the claim and recovering their costs given a successful outcome.

 

We advised that an application be made for security for costs and to seek security or failing that orders that the plaintiff’s action be dismissed.

 

The result was a success for the defendants, effectively having the claim dismissed and saving tens of thousands of dollars in legal costs as the matter did not proceed to trial. 

While the facts were unique every option should be explored in order to protect an estate and a party’s interests as a beneficiary.

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