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Stuck in the middle: Executors and Will disputes

By Margaret Arthur / 23 March 2023
3 min.
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Worthwhile read for: Individuals, Families, Couples, Parents, Children of aging parents

If you’re the executor of a deceased person’s Will and a claim is made either by a beneficiary or someone who thinks they should have been a beneficiary, then your job is much harder.

Executors stuck in the middle of warring parties should:

  • consider, if they haven’t applied for Probate, ‘renouncing’ which will have the result that the person named as an alternative in the Will or, if there is no one else named in the Will, some other third party, can apply for the necessary grant from the Court to administer the estate;
  • be aware that their job is to uphold the Will but not to do so unreasonably. If there are clear grounds for someone to challenge the validity of the Will or because they feel the provision that has been made is inadequate, then it would be unreasonable and foolhardy for an executor to throw a lot of money at opposing the proceedings, particularly if that is against legal advice;
  • bear in mind that they can opt out of the administration of the estate and hand it to an “independent” administrator. An independent administrator is appointed by the court and is often a lawyer accredited in succession law. An executor could decide to apply for the appointment of an independent administrator when:

1. the executor has a personal interest in the outcome of a litigation and they may have a conflict of interest in pursuing a certain position;
2. the stress and aggravation of being stuck in estate warfare is all too much or too time consuming; and
3. many other situations, for example, where there have been accusations made against them in relation to how they have conducted their role as an executor or perhaps in some other capacity during the life-time of the deceased. 

For some executors, the decision about how hard to fight the litigation can be tricky. In these situations, it can be beneficial for an executor to apply to court for a direction as to whether they should pursue litigation and/or defend litigation in the name of the estate. Doing so can be very beneficial from the point of view of legal costs because the Court can give them ‘a green light’ to press on with whatever they’re proposing and that will assist them in deflecting accusations of wasting the resources of the estate.

A silver lining for some executors can be the executor’s commission. All the “pain and trouble” that they go through in managing the estate during the thorny litigation, is likely to justify a higher executor’s commission. 

Some cases can be time consuming, where executors may ask – is it worth it? If that’s the situation then there is an escape hatch – but it is usually via a trip to the Supreme Court to allow them to pass the baton to their lucky replacement. 

It is very important that the executor obtains good legal advice before embarking upon a series of steps that are later impossible to undo. For more information or for any questions regarding your circumstances, get in touch with our Estates and Succession team at HopgoodGanim Lawyers. 
 

Key Contacts
Margaret Arthur
Special Counsel
Margaret is a Special Counsel with HopgoodGanim Lawyers and specialises in the area of Succession law and Elder Law.

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