What is the Role of an Executor in a Will Dispute?

What is the Role of an Executor in a Will Dispute?

 

 

An Executor is ensured with significant responsibility in handling the assets involved in a deceased’s estate and distributing them amongst the testator’s beneficiaries.

 

The position can be very taxing, especially if they know the deceased – which is often the case. The tasks involved require a lot of time and administrative paper work.

 

However, what happens when one the beneficiaries believes that the will needs revision as it does not represent the intentions of the deceased or believe the will to be invalid?

 

It may be your role as Executor to uphold the interests of the testator and represent their interests in court. Below are a few considerations to make when defending a will.

 

What is the role of an Executor?

 

An Executor is a person or institution appointed by a testator (deceased person and author of the will) to carry out the terms of their will. There are many requirements involved in being the Executor of the estate.

 

Some of these activities include, but are not limited to:

 

  • Attending to funeral arrangements for the deceased;
  • Locating the will in a timely fashion;
  • Applying to the Supreme Court for a grant of Probate of the last Will (the Probate is a formal document that allows the Executor to administer the estate legally);
  • Defining the beneficiaries in accordance with the will;
  • Collecting the assets mentioned in the will and the deceased’s estate;
  • Pay off all outstanding debts or claims arising from the estate;
  • Distribute assets in accordance with the will in a timely and reliable fashion;
  • Preparing and managing appropriate documents;
  • Preparing and lodging tax records and returns;

And…

 

 

What to do when you are an Executor facing a dispute?

 

If there is a direct challenge to the will you are Executor for, then you may be required to uphold the interests of the testator in court or through mediation. However, as Executor you are not locked into Court proceedings.

 

As Executor you may take an ‘administrative’ role and name someone else as the ‘Defender’ in the proceedings. Once the proceedings are done with, you are able to continue in role as Executor.

 

However, if you do wish to continue as the defendant in court proceedings, you may be required to attend mediation, negotiations, or arbitration in addition to potential litigation in court.

 

This process can result in a loss to the estate, significant mental stress and create rifts between involved parties. If possible find a way to work out issues with the parties involved before mediation or litigation is necessary.

Issues to consider as an Executor

 

There are a variety of issues to consider when named Executor of an estate. Consider first if there are any conflicts of interest with you being the Executor. Sometimes conflict of interest can be used against the Executor in court proceedings, however, the law tends to side with the testator and their judgement to name the Executor.

 

An Executor is also an eligible beneficiary, but often this is not an issue. The law typically assumes the testator was aware of the potential conflict arising and named the Executor in spite of this potential conflict of interest.

 

Executors may also be removed and their office terminated if they have been out state for over two years, expressed a wish to leave the position or is found incapable of acting on the testator’s behalf.

 

Summary

 

The role of an Executor is not an easy one, and can be especially tiresome when forced to deal with a will dispute. Luckily, the Executor has the right to name another person as Defendant in such cases.

 

However, there are a variety of responsibilities that the Executor still has to maintain. Not to mention, there are potential complications and conflicts of interest they may need to address when filling the role.

 

If you are an Executor and the will you are responsible for is being challenged, your first port of call should be a reliable lawyer familiar with estate litigation. When looking for an estate lawyer make sure to find one with a high mediation success rate, as this can avoid several headaches and financial costs associated with going directly to Court.

 

 

For more information on Contesting a Will, try reading this blog to find out more. If you are in Melbourne and interested in Contesting a Will visit the www.willcontesting.com.au website to find out more about Hentys Lawyers and their reliable high quality no win no fee estate litigation services.

 

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