In addition to the proceedings such as family provision claims, claims alleging the will is not valid, etc, Segelov Taylor are able to assist in other will disputes including:

  • Disputes between co-executors as to the administration of an estate;
  • Disputes as to whether the executor has complied with their obligations.

Wills and estates litigation can be costly, drawn out and frustrating.  Great care should be taken not to waste money (or deplete the estate) and to not make what is often a bad situation worse.

Multiple executors

Multiple persons can be named as executors.  

If all the executors are willing to accept the role and receive a grant of probate, they must work in concert to administer the estate. Multiple executors act with joint authority on more significant aspects of the executorship, such as selling, mortgaging or leasing the property or defending the estate in court.  

Typically, joint executors will need to resolve their internal disputes and act in agreement. If an agreement cannot be reached through negotiations, then one executor can apply to the court to remove the other. If none of the executors wants to step down or act unified, it is open to the Court to determine who should administer the estate. 

Forcing an executor to act

If an executor is named in the will does not want to act, they can file a Renunciation of Probate form with the Supreme Court of NSW. Before the executor renounces their position, they should check the will’s wording to another person is entitled to take their place. If there are no other institute or substitute executors, your solicitor, accountant, or the NSW Trustee & Guardian may be appointed executor.  

If all the named executors renounce their rights, then the beneficiaries can apply for letters of administration and become the estate administrator.  

If the executor is willing to act but does not take steps forward as required, there is the ability to go to the court to order certain actions to be taken or for the executor to be removed. See more in ‘dealing with an executor who has done the wrong thing’ section.  

Dealing with an executor who has done the wrong thing

The executor of an estate has a duty to act honestly and care to administer the estate and will be held liable if they do not act accordingly. The court has the power to hold an executor responsible if they breach their duties. For example, if the executor causes a loss to the beneficiary through a lack of diligence which results in excessive delay.  

Other breaches of duty may include:  

  • The executor takes too long to apply for a grant of probate. 
  • The executor makes decisions that do not appear to be appropriate.  
  • The executor fraudulently uses the estate funds for their own purposes.  

The court also has the power to remove an executor from their role if they are deemed unsuitable. The court considers the original grant, as outlined in the will, and will hear submissions relating to the executor’s conduct. If the court finds it necessary, they will remove the executor from their role.  

If you believe this is currently happening in your situation, it is important that you seek legal advice as soon as possible.  

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