Will Disputes Between Executors & Beneficiaries – What You Need To Know
A lack of communication is a common cause of beneficiary/executor Will disputes, but what if the beneficiary thinks the executor is not doing their job or acting against the beneficiary’s interests? If you are a Will beneficiary this is what you need to know.
Will Executor’s Role – what is it?
The role of the Will executor is to put the wishes of the Will maker into effect by collecting assets, paying liabilities and distributing the Will maker’s property to those the person wished to benefit (beneficiaries)
Will Executor Powers and Duties – what are they?
Will Executors have a number of specific powers and duties including:
- Proving (probating) the Will;
- Collecting and securing estate assets;
- Ascertaining/discharging the deceased’s liabilities;
- Settling estate claims;
- Keeping proper accounts to show where estate money has gone; and
- Distributing the estate assets.
A Will Executor should apply for probate of the Will promptly. Where a grant is not applied for within 6 weeks of the Will maker’s death the matter may be brought before the court to receive an explanation as to why this has not occurred.
A Will Executor has a year from the date of death within which he/she cannot be compelled to distribute the estate.
Another time limit which executors should observe is the limitation period for claims for provision – meaning the estate should not be distributed within six months of the grant of probate.
I am a Will Beneficiary – what are my rights?
The key right of a Will Beneficiary is to have the estate administered in a proper and timely way and to share in the fruits of that administration.
The other key right is to bring an application for compelling an executor to prove or renounce probate of a Will, or the removal of the executor or trustee of an estate and for the right to a distribution and the right to an accounting. Where has the estate money and assets gone? Who got what and do the distributions accord with the Will?
What are examples of Will Executor conflicts of interest?
An executor’s personal interests and his/her executor duties must not conflict.
Examples of conflicts include:
- A Will Executor being in possession of land, using it and not agreeing to transfer or sell it contrary to the terms of the Will;
- A Will Executor making a claim for provision known as a family provision claim. In that instance the court would allow a person with a substantial interest in the estate (usually an affected beneficiary) to oppose the executor’s provision claim;
- A Will Executor who has an “interest” in an actual or potential estate claim. An example would be an executor asserting a gift of monies from the Will maker in circumstances where evidence suggests it was a repayable loan.
Can a Will Beneficiary remove a Will Executor?
Yes. If a Will Executor refuses or is unfit to act or is incapable of acting, the court has power to order their removal.
Conduct which may result in the Will Executors removal include:
- Persistently refusing to obtain probate;
- Serious delays in administering the estate;
- Refusing to make distributions to beneficiaries as required by the Will;
- Treating property belonging to the estate as their own in failing to account to the beneficiaries;
- Failing to provide beneficiaries information/estate accounts;
- Refusing to sell a house required to be sold under the terms of the Will with the intention to hold it for use by the executor or someone associated with the executor.
Will Disputes - How we can help
If you are a Will Beneficiary we can help you by:
- Providing advice regarding your beneficiary rights and any executor breach of duty;
- Assisting you to negotiate and resolve your claim against the executor;
- Representing you in any court application to remove any executor.
We are experienced Will dispute lawyers with a proven track record in acting for beneficiaries in executor disputes.
If you are involved in a beneficiary/executor Will dispute and are unsure of your legal position and how best to resolve it please get in touch with Andrew O’Bryan or Carl Wilson on 9200-2533 or send us an email.
We have offices at Melbourne, Dandenong and Pakenham.
How to contact our Will dispute lawyers
Andrew O’Bryan
Galbally & O’Bryan
Will Dispute Lawyers
259 William Street
MELBOURNE VIC 3000
T (03) 9200 2533 | M 0400 469 704
E aobryan@galballyobryan.com.au
Carl Wilson
Galbally & O’Bryan
Will Dispute Lawyers
259 William Street
MELBOURNE VIC 3000
T (03) 9200 2533
E cwilson@galballyobryan.com.au
Dandenong Office
Shop 9 / 147-151 Foster Street
DANDENONG VIC 3175
T (03) 9769 2510
E nglavic@galballyobryan.com.au
Pakenham Office
Shop 1, 15 John Street
PAKENHAM VIC 3810
T (03) 5941 7990
E pakenham@galballyobryan.com.au