The Role of an Executor in Family Provision Claims

By Nanae Yoshiwara, Senior Associate Litigation & Dispute Resolution

Executors are entrusted with the responsibility of administering an estate, which can be both legally complex and emotionally taxing, especially in the wake of a loved one’s passing. They must act in the best interests of the estate while fulfilling the wishes outlined in the deceased’s will. However, this role often brings them into direct engagement with disputes amongst the family and related parties. 

Having represented many executors of wills challenged by the will maker’s children, the Argon Law team have often seen orders made which resulted in children receiving a much greater share from the estate than the will allowed for. So, how is this possible when the will maker was clear about their wishes?

If you have been nominated as an executor under a will, it’s important to understand this most common type of “challenge” to a Will – a family provision application – which is raised under the Succession Act 1981 (Qld).

Spouses, children, step-children and certain dependents of the deceased can bring a family provision application 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.

In this article, we will explore common challenges faced by executors in family provision claims and provide practical strategies for managing these risks while avoiding personal liability.

What are an Executor’s Duties?

An executor’s primary duty is to administer the estate in accordance with the law and the deceased’s instructions. While this sounds straightforward, it can be far from simple, especially when family members or potential claimants raise disputes. 

Executors are often pressured by claimants or their solicitors for information before the formal commencement of proceedings, and this can lead to significant stress.

Under Section 33Z of the Succession Act 1981 (Qld), executors are required to provide potential claimants with access to the will and any earlier wills. However, there is no legal obligation to disclose details of the estate’s assets or liabilities until after the family provision application has been formally filed. This can be a point of contention, as solicitors acting for potential claimants may attempt to pressure executors into early disclosures.

As an executor it is also important for you to understand that there are certain time limits within which family provision applications must be made. You should be very reluctant to allow any distributions from the estate before you are confident that the time for an application to be made has passed.

How Can an Executor Manage Threats of Personal Liability?

Executors often face the threat of personal cost orders if they refuse to provide certain information before proceedings have begun. It’s important to note that cost orders against executors personally are generally reserved for cases where there has been misconduct, dishonesty, or unreasonable conduct. Simply declining to provide asset information before the commencement of proceedings does not itself constitute misconduct. 

If a successful family provision 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.  But you also have a duty to act reasonably in dealing with a genuine claim.

Practical Steps for Executors facing Family Provision Claims

1. Engage Early with Legal Advisors
   To avoid being caught off-guard by aggressive claimants or their solicitors, executors should seek legal advice as early as possible. This ensures that their actions are guided by proper legal procedures and that they understand their obligations under the law.

2. Provide Appropriate Disclosures
   While the executor is not required to disclose estate assets and liabilities before formal proceedings, it may be advisable to engage in early settlement discussions on a without prejudice basis. This allows for transparency in negotiations while protecting the executor from future claims of improper conduct.

3. Protecting Yourself from Personal Liability
   Executors should maintain detailed records of all actions taken during estate administration, and they should ensure that any claims made against the estate are addressed properly. Obtaining professional advice before distributing estate assets is critical to protecting against personal liability. Executors should also consider obtaining clearance certificates from the ATO to protect themselves from any outstanding tax liabilities.

As an executor, it is important to understand your rights and obligations when faced with a potential family provision claim. Acting in accordance with the law and seeking timely legal advice can protect you from undue pressure and personal liability.

At Argon Law, we are here to support executors through every step of the estate administration process. If you are facing a family provision claim or have concerns about your responsibilities as an executor, find out more about family provision applications or contact us to arrange a complimentary 15-minute consultation.