Defending a Family Provision Application: What Happens When a Will Is Contested and You’re the Executor?

Being appointed as an executor is often seen as an honour. But when a family provision application is made, it can quickly become one of the most stressful and complex roles you’ll ever take on. 

You’re no longer just administering an estate—you’re now responsible for defending it. 

Understanding Your Role as Executor 

At its core, your role is to: 

• Administer the estate according to the Will  

• Act in the best interests of all beneficiaries  

• Protect the estate from unnecessary risk  

When someone contests a Will, they are effectively arguing that they were not adequately provided for. This places you in a position where you must defend the validity and intentions of the will. 

Why Timing Matters More Than You Think 

One of the most important decisions an executor makes is when to distribute the estate. 

If there’s any risk of a claim, distributing assets too early can expose you to personal liability. 

Key timeframes to remember: 

• 6 months from date of death: Notice of intention to make a family provision claim must be given 

• 9 months from date of death: Application for family provision must be filed  

If there’s any uncertainty, it’s often safer to wait until these periods expire before distributing. 

Common Scenarios That Trigger Claims 

Not all disputes arise from complete exclusion. In fact, some of the most common triggers include: 

• Unequal distribution between children  

• Estranged family members left out of the will  

• Lack of explanation for decisions in the will  

This is where professionally drafted Wills become critical. Solicitors often keep detailed records, statements, or letters explaining the reasoning behind decisions.  This is not something you will find in a DIY Will! 

The Risk of Personal Liability 

Many executors don’t realise that their role carries legal and financial risk. 

If you: 

• Distribute assets prematurely  

• Fail to properly respond to a claim  

• Act in a way that disadvantages the estate  

You may be held personally liable. 

On the flip side, legal costs for defending a claim are usually paid by the estate - but this isn’t guaranteed if conduct is unreasonable. 

Mediation: Where Most Disputes End 

The reality is that most family provision claims don’t go to court. 

Instead, they are resolved at mediation, where parties negotiate an outcome. This is often the most practical path forward, as litigation can cost hundreds of thousands of dollars. 

Sometimes, an application is filed simply to preserve time limits while negotiations continue. 

What If You’re Both Executor and Beneficiary? 

This is a common—and challenging—situation. 

If the will is being contested and you stand to benefit significantly, your position may become conflicted. In some cases, it may even be appropriate to step aside as executor. 

This depends on the circumstances and should always be assessed with legal guidance. 

Why Legal Advice Is Essential 

Defending a family provision claim isn’t something you should navigate alone. 

A lawyer can help you: 

• Understand your obligations  

• Manage risk and liability  

• Respond appropriately to claims  

• Navigate mediation or court processes  

Most importantly, they help ensure you’re protecting the estate—and yourself. 

Final Thoughts 

Being an executor during a dispute is emotionally and legally demanding. 

But with the right advice and a clear understanding of your role, you can navigate the process confidently and fulfil your responsibilities properly. 

If you’ve been appointed as an executor and are facing—or anticipating—a family provision claim, seeking early legal advice is crucial.