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Can the Executor of a Will be challenged?


The role of an Executor of a person’s estate is an important position of trust.

An Executor has access to all of a person’s assets, their possessions and money, following their death and is bound by law to act in the best interests of the beneficiaries and to protect the assets making up the estate.

This time will be difficult in many respects for those who had been close to the deceased which may well include the Executor. Where the Executor is not carrying out their duties properly it can be an added worry for all concerned.

There is often confusion surrounding the powers of an Executor and what happens if they misuse those powers or do not act in the interests of the beneficiaries of the Will.

At Szabo & Associates Solicitors we can intervene on your behalf if it is an area of concern and advise you of your options. This could involve negotiating the removal of an Executor whose conduct is not acceptable by asking the Court to remove them.

Advice on challenging an Executor of a Will

Our advice, in respect of Executors who are not dealing effectively with an estate or who are otherwise failing, can include issues in respect of the following:

- delay in obtaining a Grant of Probate. It is generally accepted that an Executor should obtain probate and administer the estate within 12 months of the deceased’s death;

- failure to produce estate accounts;

- the Executor has a conflict of interest in respect of the deceased’s estate;

- the Executor has neglected their duties generally;

- the Executor has put their own interests ahead of the beneficiaries;

- unreasonable expenses are being charged to the estate;

- estate assets are being incorrectly valued;

- estate assets are being disposed of at less than market value;

- disputes between Executors are causing issues;

- Executors are acting fraudulently or misappropriating the estate’s assets;

- the Executor is no longer of sound mind or has the legal capacity to fulfil their duties; and

- if necessary, remove an Executor from office or replace the Executors with independent administrators.

If you are concerned about the conduct of an Executor and you would like advice as to how to proceed our Executor disputes solicitors will be happy to help.

What happens if an executor does not follow the Will?

When an Executor fails to distribute funds in accordance with the Will, it is open to bring legal proceedings against them to recover what they should have received.

The Executor will be required to pay them what they are due under the terms of the Will.

If there are insufficient funds available because of what the Executor has done they may have to settle the claim from their own resources.

Executors can be personally liable for any loss to the estate.

Can an Executor sell property from an estate without all the beneficiaries’ approval?

While an Executor has to act in the interests of the beneficiaries they do not have to obtain their approval for everything they do. They can dispose of a property if they believe that this is the right cause of action.

However, they need to be careful not to act for personal gain.

This principle also applies to the sale of a property belonging to the estate.

The Executor needs to achieve the best possible price and provided the sale price is at market value the Executor will usually be able to demonstrate that they have acted reasonably.

Removing an Executor from office

Removing an executor is possible where there has been a serious breach of their duties. This could be where there is serious misconduct such as not keeping records, mismanaging or stealing from the estate, not obeying an order of the Court or where an Executor is acting fraudulently.

Depending on the circumstances, the first step in dealing with an Executor whose conduct has not been adequate is to write requiring them to explain what the issue is and request them to rectify the situation.

If problems continue, an application can be made to the Court asking for the removal of an Executor. This will need to be accompanied by supporting evidence.

The application will also need to include the name of a proposed substitute Executor together with their consent to take on the role.

The Court has the authority to exercise its discretion to make an order removing an Executor where there is evidence that they have not been undertaking their duties in the best interests of the beneficiaries and, where Probate has already been granted, to make an order of revocation of the Grant of Probate. This is what occurred in the case study below.

Case Study: Wise v Barry: The Estate of Robyn Margaret Wise (2018)

In this case, the NSW Supreme Court looked at the prejudice that was being caused to beneficiaries because of delays in administering the Will. In order to repay a mortgage and other expenses it was necessary to sell a property.

The net proceeds were then needed to be distributed to the beneficiaries in accordance with the Will.

However, this did not take place because one of the Executors, Mr Barry the de facto spouse of the deceased, wanted to continue living in the property.

The Court agreed with them that the Executor in question, Mr Barry, was in breach of their duty as an Executor and that orders should be made for vacant possession and also the removal of him from office so that Ms Wise’s son would be the sole Executor and that the Grant of Probate should be revoked.

Contact our Wills and Estate Lawyers based in Sydney, NSW

If you feel an Executor is not acting in the best interests of the beneficiaries or carrying out their duties as instructed in the Will it is important to obtain specialised legal advice as soon as practical. Please call us on 02 9281 5088 or complete the online contact form.

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