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Defending a Will


Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Adelaide: (08) 8410 0055
Perth: (08) 9321 5505

Eric Butler
Janet Botros
Alun Hill
Sandy Rizkallah
Maree Harris
Anna Bratti
Lauren Gidley

Executors of an estate often find themselves in a position where by virtue of their position as a trusted friend or relative of the deceased, they are involved in litigation over the estate to Defend the Will. This can often be quite daunting.

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.

Duty not to distribute after receiving Notice of Application

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:

  • Where the applicant is also a beneficiary, the executor may pay the applicant his or her benefit as a beneficiary provided the personal representative has reasonable grounds to believe that the applicant beneficiary will receive provision greater than the benefit provided under the Will or intestacy.
  • An executor may make a distribution in the face of a claim if he or she acts on legal advice and with the consent of all parties who might be conceivably

Duty to assist the Court

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.

Duty as to separate representation

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:

  • Where the executor is also a beneficiary under the deceased person's Will: Re Burton [1958] QWN 27
  • Where there are very substantial benefits to be received by the beneficiaries under the Will: Re Bowcock [1968] 2 NSWLR 700.

Duty when acting in more than one capacity

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 [1919] NZLR 807.

Where there is a conflict of interest

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.

Duty to inform the Court of the estates assets and liabilities

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.


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where to next?

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.

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