An executor is the legal personal representative appointed under a Will to oversee the administration of the estate of a deceased person. An administrator has a similar role however is appointed by the Court when a person dies without leaving a Will or if the executors appointed in a Will are unable to act.

If you have been appointed an executor then you will usually need to deal with various parties such as accountants, creditors, property valuers and estate agents to administer the estate and oversee distribution to the beneficiaries.

The administration of an estate where a valid Will has been left usually runs reasonably smoothly, under the guidance of a lawyer. However, sometimes the terms of the Will may be challenged and an executor will need to deal with this.

A claim on a deceased estate can be daunting in already difficult circumstances. An executor who is also a beneficiary (which is often the case) will be faced with conflict and the person claiming is usually known by the executor and often a relative.

The following is a summary of how a family provision claim is made, the obligations of the executor or administrator in such circumstances, and how a lawyer can assist an estate facing a claim. The information is general only and you should obtain professional advice relevant to your specific circumstances.

Claims for family provision

The terms of a Will may be contested under family provision legislation. Some claims will proceed to Court, but most settle through mediation between the parties’ representatives.

A family provision claim, if successful, enables a Court to make orders to provide for a claimant from the estate of a deceased person. In other words, despite the terms of a valid Will, the Court may change those terms to vary the distribution of the estate in favour of the successful claimant.

Family provision claims are often fraught with conflict and tension.

How is a family provision claim made?

A family provision claim may be made by an ‘eligible person’ which varies from state to state, but generally includes a spouse or de facto partner of the deceased, a biological, adopted child or step-child, and certain other categories of persons under specified circumstances. A lawyer will explain whether a person intending to make a claim is eligible to do so.

Strict timeframes apply for making a family provision claim, and the time limit will only be extended on application and in exceptional circumstances.

An eligible person must show that the deceased owed a moral obligation to provide for him or her and failed to do so. The Court must be satisfied that the claimant was left without adequate provision for his or her proper maintenance, education and advancement in life.

A number of factors are considered when assessing a claim including the terms of the actual Will and any evidence of the deceased’s intentions with respect to the claimant, the nature and length of the relationship between the claimant and deceased, the size of the estate and the competing financial needs between the claimant, other eligible persons and the beneficiaries.

What are the obligations of the executor?

An executor has a duty to uphold the terms of the Will and to preserve the assets of the estate. The executor must also consider the consequences of a successful claim. A decision needs to be made as to whether to admit the claim and try to settle it (preferably through mediation to avoid the costs of litigation) or to defend the claim.

Indeed, some claims are morally justified by applicants who may not have been adequately provided for, and the Will of the testator may not reflect what he or she really intended had all the circumstances been known.

An informed decision regarding the likely success of a claim should be made with the guidance of a lawyer. Each case is assessed on its merits and a lawyer will look at the relevant facts and advise on the options of compromising or defending a claim. Depleting estate assets through expensive litigation should be avoided.

Conclusion

Family provision claims are complex and executors or administrators must weigh up the advantages and disadvantages of defending or attempting to settle a claim.

If you are an executor or administrator of an estate, you should seek legal advice immediately if you think that a claim may be brought against it. Your lawyer can advise you on the likely success of such a claim and will guide you through the appropriate steps in dealing with it.

Your lawyer can also assist with your own estate planning to reduce the risk of a family provision claim against your estate. If you require any additional information or would like a confidential discussion, please call us on 03 8346 4900 or email [email protected].