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In this section you will find many articles setting out information concerning the duties of an executor and Defending a Will in a Family Provision or Contested estates claim.
If you would like to speak to one of our solicitors in relation to a Family Provision or Contested Will claim, please do not hesitate to contact us, or send us an email by clicking on the appropriate button on the right hand side at the top or bottom of this page.
An executor has a duty to preserve the deceased person's estate until after a Family Provision Application has been determined by the Court.
This means that an executor cannot distribute any of the deceased person's estate after receiving Notice of an Application for a Family Provision Order. If the executor does distribute any of the deceased people's estate after receiving Notice of an Application for a Family Provision Order the executor may be held by the Court to be personally liable for any loss sustained by the Applicant.
In limited circumstances, there are exceptions to the duty not to distribute:
An executor of a deceased person's estate has a duty to assist the Court in providing information regarding the financial affairs of the deceased person's estate.
The executor of a deceased person's estate must provide the Court with all documents in their possession and control regarding any reason the deceased person made provision or lack thereof for certain persons under the Will.
An exception to the executors duty to provide the Court with the above information may arise if the executor of the deceased person's estate is under another legal obligation to keep that information confidential.
If you are an executor of a deceased person's estate and unsure of what your duties to the Court are, book an appointment with one of our solicitors.
As a general principal, separate representation of the executor of a deceased person's estate and beneficiary of a deceased person's estate is considered by the Court to be inappropriate. Circumstances that the Court has considered it appropriate for separate representation of the executor and beneficiary include the following:
In circumstances where an executor of a deceased person's estate is in the position where they also have a different capacity i.e as a beneficiary the executor needs to make an application to the Court to obtain separate representation so that no prejudice is incurred.
For example, in circumstances where the executor of the Will was also a guardian for the beneficiaries under the Will the Court held that a separate executor and guardian should be appointed and that the executor was to take an inactive role and merely submit to the judgment of the Court: Re McCarthy  NZLR 807.
Where there is a conflict of interest between the executor of the deceased person's estate and another party to the Court proceedings the executor of the deceased person's estate is required to take a passive role in the Proceedings and new representatives will need to be appointed.The executor of the deceased person's estate has an obligation to inform the Court of any conflict of interest that arises.
The executor of a deceased person's estate is required to provide in Affidavit evidence the details regarding the deceased person's estate assets and liabilities both at the time of death and at the time of the Court hearing if an application for Family Provision Orders have been made.
If you are an executor of a deceased person's estate, you will need to obtain valuations to include in the above mentioned Affidavits. The valuation provided must be an up to date valuation. If there is a dispute regarding the value of the assets and liabilities of the estate, an expert valuation may be required.
Have you been left out of a Will or treated unfairly? We offer a free assessment of your case and a no win no fee policy. We have a specialist team that deals only in Wills & Estates servicing NSW, VIC, QLD, ACT, SA & WA. The law relating to Wills and Estates can often be complex and confusing so we encourage you to make contact with our team.