In New South Wales, an executor’s role typically involves managing and protecting a deceased estate, often including defending it against any claims. But what happens if the executor, who is also an eligible beneficiary, feels they haven't been adequately provided for and wants to contest the will? Here’s an in-depth look at when and how an executor might make a claim against an estate in NSW.
The Executor’s Role in Estate Administration
The executor’s primary responsibility is to uphold the wishes laid out in the will and handle any disputes that arise. If someone wishes to contest a will, they must inform the executor, who will usually try to resolve the matter outside of court. As the representative of the estate, the executor may have the legal authority to reach a settlement or alter distributions. However, it’s generally advised that they seek legal counsel to avoid personal liability.
Choosing a Beneficiary as Executor
It’s common for a testator to appoint a close family member - often a spouse or adult child - as their executor. This family member may also be a significant beneficiary, leading to potential conflicts of interest. Though appointing a loved one can be practical, some testators prefer appointing a neutral professional executor to handle their estate, minimising family tension and streamlining the administrative process.
When Can an Executor Contest a Will?
Under the Succession Act 2006 (NSW), certain individuals, such as spouses, de facto partners, children, and close members of the deceased’s household, can legally contest a will. If an executor falls within these eligible categories and believes they weren’t adequately provided for, they may contest the will - provided they first renounce their role as executor. Renunciation requires filing a formal document with the Supreme Court of NSW, which should be done promptly before any significant administrative actions have been carried out.
Steps a Testator Can Take to Prevent Contested Wills
To reduce the likelihood of an executor contesting a will, testators can take proactive steps, such as ensuring their will adequately provides for eligible family members. Discussing the contents of the will with the intended executor can also help manage expectations and avoid potential disputes. Alternatively, appointing a professional executor - such as a solicitor - may prevent conflicts of interest altogether, ensuring that estate management remains objective and impartial.
By taking these measures, testators can safeguard their wishes, potentially sparing their loved ones from difficult legal battles down the road.
If you are an executor in New South Wales considering contesting a will, the experienced Wills & Estate Lawyers at New South Legal Legal can provide you with guidance - offering an initial assessment of your likelihood of success and assisting you in navigating each step, including formally renouncing your executorship, working with the new administrator, and filing a claim against the estate.
Contact New South Lawyers today to secure your representation and approach your case with confidence.
