Where You Die Can Affect Asset Distribution15th December 2023
The jurisdiction in which a person is domiciled when they die can have huge implications upon the distribution of their assets.
Defending Claims Agaist an Estate
If you are the executor of an estate and someone brings or threatens to bring a family provision claim against the estate or a challenge to your right to a grant of probate, there are several steps you should take:
1. Seek legal advice
Seek legal advice: The first step for an executor facing a claim is to seek legal advice from a lawyer who is an expert in estate litigation. RMB Lawyers team of expert estate litigators can provide guidance on the obligations and responsibilities of an executor, the likelihood of the claim being successful, and the best course of action to take.
2. Investigate the claim
As the executor, you should gather all relevant information and documents relating to the claim, including the deceased person's will, any relevant financial information, and any correspondence or communication between the parties.
3. Assess the claim
With your lawyer, assess the merits of the claim and determine whether there is a reasonable basis for the claim to be successful.
4. Negotiate a settlement
If there person has a claim with reasonable prospects of success, it may be possible and beneficial to negotiate a settlement with the claimant without going to court. You and your lawyer can discuss settlement options with the claimant and their lawyer.
5. Prepare and file a defence
If a settlement cannot be reached, you and your lawyer will need to prepare and file a defence. This will involve setting out the grounds on which the claim is being defended, including any arguments as to why the claim should not succeed.
6. Attend mediation
In many cases, the court will require the parties to attend mediation before a trial date is set. You and your lawyer will need to prepare for the mediation and negotiate in good faith to try to reach a settlement.
7. Attend court
If the claim is not resolved through settlement or mediation, the matter will proceed to trial. You and your lawyer will need to attend court and present your case to the judge.
It's important to act promptly when faced with a claim upon an estate. RMB Lawyers can assist defending a claim, or simply to provide a second opinion.