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Can An Executor Contest A Will? (NSW)

An executor is typically the person who defends a deceased estate against a Family Provision Claim. However, when the executor is also an eligible beneficiary, the executor can bring a claim against the estate under certain conditions. This article explains how an executor can contest a will in New South Wales.

The Executor’s Role In Defending The Estate

The executor of a deceased estate is responsible for defending the estate from any legal challenge or contest. Anyone who wants to claim against a deceased estate must first inform the executor before formally applying to the Supreme Court of New South Wales. The executor must attempt to negotiate out of court with anyone who contests the will. The executor has the legal authority to settle a claim and arrange a distribution that differs from the will. However, it is prudent to consult a solicitor to limit personal liability. The executor also acts as the defendant, representing the estate if the claim escalates to a court proceeding.

Appointing A Beneficiary As Executor

There is no legal impediment to choosing a beneficiary of a will to act as executor of that will. In fact, it is very common for a testator to choose a spouse or adult child to administer their deceased estate. As a result, an executor is very often also a major beneficiary of that estate. It can be more prudent to appoint a professional to act as executor, as this reduces the potential conflict of interest and saves the family member the time and effort involved in the role.

Can An Executor Contest A Will In NSW?

In New South Wales, eligibility to contest an estate is limited to spouses, former spouses, de facto partners, and the deceased’s biological and adopted children. There is also conditional eligibility for grandchildren and members of the deceased’s household and anyone in a close personal relationship with the deceased.

An executor who fits into one of the above categories is eligible under the Succession Act 2006 to contest the terms of the will. An executor may feel compelled to contest the will that they were asked to administer because the testator did not properly provide for them in the will. In that case, the executor can apply to the court to have their distribution increased, but they must first officially renounce their role as executor. To do this, the prospective claimant must sign a formal renunciation of probate and file the form with the Supreme Court of NSW. The executor should complete this paperwork as soon as possible, as the application may be invalid if the executor has already begun to administer the estate. The Supreme Court will typically appoint a suitable administrator to take over from the executor. This administrator is then responsible for defending the estate against the former executor’s application for a larger bequest.

The former executor must officially inform the new administrator of their intent to claim against the estate and file a Family Provision Claim with the Supreme Court. The prospective claimant must move swiftly to ensure that they renounce before completing any executor duties and because there are deadlines that apply to this type of claim. An eligible claimant has a year from the testator’s date of death to file the claim with the court. This seems like a long time (and is the most prolonged delay of any jurisdiction in Australia), but the time will move swiftly. This is especially the case if the claimant must first arrange to renounce the executorship, wait for the court to appoint an appropriate administrator, make their claim and begin negotiations with the administrator.

What Can A Testator Do To Avoid This Situation?

A testator can help safeguard against anyone (including an executor) contesting their will by making adequate provisions for eligible claimants in their will. More specifically, a testator can take the precaution of talking over the will’s contents with the appointed executor to explain the distribution of the estate. Hopefully, this means that the executor will be familiar with the terms of the will and is not inclined to claim against the estate. Alternatively, the testator can appoint a professional executor (such as a solicitor) to manage the estate. In this way, there will be no conflict between completing the executorship and making a claim for greater provision.

The contested wills team at Armstrong Legal can advise you if you are an executor who wants to contest a will in NSW. We can give you a preliminary assessment of your chances of success, guide you through the process of renouncing your role, negotiating with the new administrator and filing an official claim against the deceased estate.  Please communicate with our team via our online contact form or telephone 1300 038 223 today for experienced, friendly advice.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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