Contested Wills in Victoria: What Executors and Beneficiaries Should Know

The executor's duty when a claim is made

An executor or administrator served with a Part IV claim, or on notice of a likely claim, owes the estate a duty to defend it in a measured way. The role is not to take partisan positions between beneficiaries; it is to put the relevant evidence before the Court — the size and composition of the estate, the testator's relationships and stated reasons, and any prior provision — and to engage reasonably in mediation.

Executors should not distribute the estate during the six-month claim period under Part IV of the Administration and Probate Act 1958 (Vic), and should obtain advice before distributing if they are on notice of a potential claim. Premature distribution can expose the executor personally if a successful claimant is left without recourse against estate assets.

Section 99A statements and applications for directions

The Court is increasingly assisted by concise section 99A statements from the personal representative explaining the deceased's reasons for the dispositions made. Where the executor is genuinely uncertain how to proceed — for example, on settlement terms or on the proper approach to a contested asset — an application for judicial advice or directions may be appropriate.

Where beneficiaries fit in

Beneficiaries whose entitlements would be reduced by a successful claim are entitled to be heard. In many cases their interests diverge from those of the personal representative, and separate representation is appropriate. A beneficiary should not assume that the executor will defend the claim in the way the beneficiary would prefer; the executor's duty is to the estate as a whole.

Mediation and proportionate defence

Most Part IV proceedings in the Supreme Court of Victoria are referred to compulsory mediation, and the majority resolve before trial. A negotiated outcome can fashion results the Court could not order — the transfer of a particular asset, retention of a life interest, or a structured payment timetable — and avoids the cost and delay of a contested final hearing. The estate's response should be proportionate to its size and to the merits of the application; costs may follow unreasonable conduct.

Where to from here

Hanlons acts for executors, administrators and beneficiaries in Victorian estate disputes. For an overview of the practice see contested wills and TFM claims; for the administration process generally, see probate and deceased estates; and for testamentary planning that may reduce the risk of a future dispute, see wills and estate planning.