Role of an Executor under a Family Provision Application

Oct 20

If you have been nominated as an executor under a will, you need to understand the most common type of “challenge” to a Will – a family provision application.
Having represented many executors of wills challenged by the will maker’s children, we 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?
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.
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 from the estate before you are confident that the time for an application to be made has passed.
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.  But you also have a duty to act reasonably in dealing with a genuine claim.
If you would like more information about family provision applications or deceased estates in general, please watch our video, visit our website or give us a call.
This information is of a general nature only and is not to be relied on as legal advice. You need to seek your own legal advice about your own specific circumstances.