An executor is typically the person who defends a deceased estate against a Family Provision claim. However, when the executor is also an eligible beneficiary, there are circumstances in which they can bring a claim against the estate.
Executor’s role in defending the estate
The executor is responsible for defending the estate from any legal challenge. Someone who wants to claim against a deceased estate must advise the executor before filing an application in the Supreme Court of NSW. The executor must attempt negotiations out of court with anyone contesting the Will.
The executor has the legal authority to settle a claim and distribute the estate differently to the way set out in the Will. However, it is prudent for the executor to consult a solicitor to limit their personal liability. The executor also represents the estate acts as the defendant if the claim escalates to a court proceeding.
Appointing a beneficiary as Executor
There is no legal impediment to choosing a beneficiary of a Will to also act as executor of that Will: testators often choose an adult child or a spouse to administer their estate. Consequently, an executor is often also a major beneficiary of the estate.
Can an Executor contest a Will?
The Succession Act 2006 (NSW) provides that an executor in one of the following categories are eligible to contest a Will:
- Unconditionally:-
- spouses and former spouses;
- de facto partners; and
- the deceased’s biological and adopted children;
- conditionally:-
- Grandchildren;
- members of the deceased’s household; and
- people in a close personal relationship with the deceased.
An executor may wish to contest the Will they were appointed to administer because they consider that the testator did not adequately provide for them in the Will. In that event, the executor can apply to the court to have their distribution increased, but only after they have officially renounced their role as executor. The prospective claimant must file a formal renunciation of probate form with the Supreme Court of NSW. The executor should file this application before completing any executor duties as it may be invalid if they have begun to administer the estate. The Court will usually appoint a suitable administrator to take over from the executor. This administrator is then responsible for defending the estate against the former executor’s application contesting the Will. The former executor must officially inform the new administrator of their intention to file a Family Provision claim with the Supreme Court of NSW.
A Family Provision claimant has a year from the testator’s date of death to file the claim with the court. The claimant must renounce the executorship, then wait for the court to appoint an administrator, then make the claim and begin negotiations with the administrator.
What can a testator do to avoid this?
A testator can help safeguard against anyone (including an executor) contesting their Will by making adequate provisions for eligible claimants in their Will. Specifically, a testator can take the precaution of discussing with the appointed executor the Will’s contents and the distribution of the estate. Hopefully, as a consequence the executor will be familiar with the terms of the Will and disinclined to claim against the estate.
Here to Help
Contact us for advice if you are an executor who wants to contest a Will in NSW. We can give you a preliminary assessment of your chances of success and guide you through the process of renouncing your role, negotiating with the new administrator, and filing a Family Provision claim against the estate.
