A Will-maker often appoints more than one person as executor of their Will. At times, co-executors don’t see eye to eye and cannot communicate or agree on how to manage a deceased estate. This article looks at how disputes between executors in a Will can be dealt with to enable an application for a grant of probate and administration of an estate to be finalised.
The Will-maker may have appointed two or more adult siblings as executors because they wanted to be fair and allow all their adult children to have a say in managing the estate. However, if two or more executors do not agree (or if an executor is behaving badly), this can negatively impact on the estate administration, causing stress to all parties, delays, and higher costs.
What kind of disagreements arise between executors?
In NSW, executors of a Will must apply to the Supreme Court of New South Wales for a grant of probate before they can deal with the deceased’s estate. Once the grant is made, they must administer the estate in accordance with the terms of the Will.
Examples of disputes between executors
- disagreement as to the value of particular assets;
- One executor believes that the other executor, who the Will-maker appointed as their attorney pursuant to an enduring power of attorney before the Will-maker’s passing, misappropriated money from the Will-maker’s bank account which should have been part of the estate on their death;
- How to distribute the deceased’s personal belongings which have not been gifted to specific beneficiaries in the Will;
- Whether a property should be sold on the open market or a beneficiary should be allowed to purchase it;
- If an eligible person claims against the estate by claiming that the deceased failed to meet with their obligation to make provision for them in their Will, executors’ views may differ as to how the case should be handled;
- Which real estate agent to appoint to list a property for sale;
- If the property market is experiencing a downturn, an executor may want to defer selling a property in the hope of achieving a higher sale price.
Can each executor obtain independent legal advice?
If a solicitor acting for an estate receives incompatible instructions from multiple executors, they may try to encourage the executors to resolve the dispute themselves and come to a mutual agreement.
If the executors still cannot agree on how to instruct the solicitor, they may each have to be represented by independent solicitors.
With independent solicitors acting for the estate and each executor, it can be possible to negotiate a way forward, including participation in a mediation or round table conference to resolve the issues in dispute. The parties can work together with their solicitors to get the probate application or estate administration back on track.
However, involving two or three sets of solicitors means there will be two or three sets of legal fees, which can be expensive and give rise to more complications.
How can I resolve a disagreement before a grant of probate?
If executors consider that they may not be able to act alongside each other, one of them can step aside before a grant of probate is made. An executor can renounce their position by signing a renunciation form which can be included with the probate application: the renouncing executor permanently gives up their role and responsibilities.
Alternatively, one executor can apply for a grant of probate with leave reserved to the other executor. The other executor steps aside but can apply to the court to become involved later if they wish (e.g. if they disagree with the way in which the executor who obtained the grant manages the estate).
How can I resolve a disagreement after a grant of probate?
If executors cannot reach agreement on a course of action with independent solicitors and a grant of probate has already been made to all nominated executors, then making a court application may be the only option.
Where there is a deadlock regarding administration of the estate, executors can apply to the court seeking directions aimed at breaking the deadlock.
To break a deadlock, an executor can also apply to be discharged from their role.
Alternatively, if the executors cannot agree on the estate management and none of the executors wishes to be discharged, one of the executors can apply to the Supreme Court of New South Wales for an order that the other executor be removed on the ground that they are unfit to act. The executor making the application can apply to be the sole executor or alternatively an independent administrator can be appointed.
Other reasons one executor may apply to have another executor removed are that:-
- there has been a complete breakdown of communication between the executors, causing delays and extra costs; or
- the co-executors continuing to act would impede the administration of the estate.
The court will not make a decision to remove an executor lightly, as the Will-maker chose that executor (along with any other executors) to be their personal representative. The court regards the protection of beneficiary’s interests in the estate and their welfare as paramount in determining whether or not to remove an executor.
How can I prevent disagreements between executors?
Many executor disputes are avoidable: there are things a Will-maker can do to minimise the potential for conflict.
When you make a Will, you should consider your executors carefully. Whilst appointing more than one executor may be a good idea, if siblings have fractured relationships and you think they may fight, you should consider appointing only one sibling or an independent person such as a friend or other family member.
If a friend or other family member is not an option, you may consider appointing an independent professional such as your accountant or your solicitor or an independent trustee company (all of whom will charge for their services in managing the estate).
Another option is to include directions in the Will as to how disputes should be resolved. The Will could, for example, direct that:
- if there are three executors, a decision be determined by the majority of executors; or
- where there is a dispute, one of the appointed executors has a casting vote.
How we can help
If you want to prepare a Will and you have concerns about how your children or family members will manage if appointed as co-executors, contact Mid Mountains Legal to discuss the appointment of your executors.
Contact us if you are an executor of an estate and are struggling to reach agreement with other executors on how things should be done. We can ensure that your interests are looked after and help you to resolve the issues in dispute so the estate can be finalised.
