Can An Executor Contest A Will? (Qld)
One of the tasks of an executor in Queensland is to defend the estate against any Family Provision Claims (FPCs). However, the executor’s traditional role as a defender of the estate does not preclude them from making an FPC themselves. Indeed, if the executor satisfies the eligibility criteria, they can contest a will in Queensland.
Defending The Deceased Estate
An executor has a range of different responsibilities. The executor gathers and protects the deceased’s assets and identifies and satisfies the estate’s debts. After a suitable time, the executor can then distribute bequests according to the will. More rarely, an executor must defend the estate in legal action. Someone may claim that the will is invalid (challenging the will), or an eligible person might seek a change to the distribution of the estate’s assets (contesting the will). In Queensland, eligible people can make a Family Provision Claim to the Supreme Court of Queensland on the grounds that the will is unreasonable.
Anyone who wishes to lodge an FPC in Queensland must first notify the executor/s of the estate. The claimant needs to make this notification in writing within six months of the testator’s death. The executor then has to try and reach a negotiated settlement with the claimant. The executor has the authority to settle the claim, even if they must deviate from the terms of the will to redistribute bequests. While the executor can negotiate with the claimant, it is more typical (and less risky) for the executor to engage a solicitor. The solicitor can advise the executor and lead any negotiation with the claimant. If the executor cannot settle, the matter may proceed to a hearing. During a court hearing, the executor will defend the terms of the original will with the assistance of a solicitor and potentially a barrister as well.
Can A Testator Appoint A Beneficiary As Executor?
It is very common for a testator to appoint a beneficiary to serve as executor. In many cases, this is just common sense. For instance, if the deceased names their spouse as both sole beneficiary and executor, this simplifies the deceased estate administration process. The surviving spouse need not consult any other person when deciding how to proceed with the administration of the estate.
Similarly, older people will often leave their estate to their children and appoint these children as co-executors. This can be an effective strategy to keep all the beneficiaries informed and reduce concerns over the estate administration. However, co-executors can face logistical challenges, as each executor must agree on major decisions and co-sign important documents.
In cases where there is likely to be conflict (such as when it is a large estate or the beneficiaries do not have good communication skills), it can be beneficial to appoint a neutral, third-party as executor. This executor can be a professional (such as a solicitor or accountant), family friend or another party with the skills and time to administer the estate.
Can An Executor Contest A Will In Queensland?
Not everyone is eligible to contest an estate in Queensland. Under the Succession Act 1981, only the deceased’s spouse, child and dependant can claim against the estate. Each of these terms has a specific legal meaning under the Act. A spouse includes a current de facto or registered partner and a former spouse. A child includes a biological, legally adopted child and stepchild. However, the category of “child” does not include an informally adopted child or a foster child. The category of “dependant” is broader and more encompassing. It can include the deceased’s parent, a parent of the deceased’s minor child, and any minor who the deceased maintained before their death.
An executor may well fall into one of these categories. If they do, then they are eligible to make an FPC claim. Of course, an executor cannot defend the estate against their own claim. In that case, the executor needs to formally renounce their role by filing a Renunciation of Probate or Administration with the Will form with the Supreme Court of Queensland. The executor should do this as soon as possible and before the executor has begun the administration process. There are strict time limits to lodging a claim, so an executor should not delay if they intend to lodge an FPC.
Are you an executor who wants to contest a will in Queensland? The contested wills team at Armstrong Legal can provide an initial assessment of your likelihood of success and help guide you through the process. Our solicitors can assist you in renouncing probate, negotiating with the new administrator or helping you to file a claim with the Court. Please get in touch with our team via our contact form or telephone 1300 038 223 today for experienced and practical advice.