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The Role of an Executor when a Will is Disputed

If you've been nominated as the Executor of an estate then it is very important to know that there is a period of time during which applications may be made to have changes to the distribution of the assets. 

In this video John Gallagher from Argon Law outlines what you need to know as an Executor to avoid being held personally responsible if a Family Provisions Application changes the distribution of the assets of the estate. 

Whilst these applications can only come from spouses, children and certain dependents, you should be very reluctant to allow any distributions of assets from the estate before you are confident that the time for an application to be made has passed. Otherwise, if a successful application is brought after you make distributions, you could find yourself personally responsible to pay money back to the estate.

Disputed wills may be more common than you think, so being aware of your responsibilities as an Executor will help you avoid nasty pitfalls. What the video to learn more.

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ROLE OF EXECUTOR UNDER FAMILY PROVISION APPLICATION

If you’ve been nominated as an executor under a will then you should be mindful that certain people can apply to the court, after the will maker dies, for orders which result in them receiving more from the estate than the will allows for.

Spouses, children and certain dependents of the deceased can bring these applications if they have been left out of the will altogether or even if they believe that what the will provides for them, isn’t enough.

What they need to prove is that the will fails to make adequate provision for their proper maintenance and support.  What is adequate or proper will depend on the facts of each case, but as an executor it is important for you to understand that there are certain time limits within which these applications must be made.

You should be very reluctant to allow any distributions of assets from the estate before you are confident that the time for an application to be made has passed.

This point is very important because if a successful application is brought after you make distributions, you could find yourself personally responsible to pay money back to the estate.

If an application is made, then as executor your primary duty is to defend the claim and uphold the will as this represented the wishes of the deceased.  However, where appropriate, you may need to negotiate a compromise that satisfies the various parties.

An executor must notify all interested parties that a family provision application has been made, participate in settlement and mediation discussions and present to the Court all relevant evidence.

If you’d like to know more about family provision applications or deceased estates in general, please contact us on 07 5443 9988 or [email protected].

Argon Law is a Sunshine Coast law firm based in Maroochydore.  We are commercial lawyers, body corporate lawyers and property lawyers and are eager to assist you in any way we can.

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