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Can An Executor Change A Will? (Qld)

An executor of a deceased estate is responsible for following the terms of a will as closely as possible within the law. Sometimes a beneficiary is concerned that an executor is not abiding by the testator’s wishes or is seeking to change the terms of the will. An executor may have to administer an estate contrary to the terms of a will for legal or practical reasons. This article answers the question: Can an executor change a will in Queensland?

What Is The Role Of The Executor?

A testator leaves instructions in a will about the distribution of the estate’s assets and the payment of any liabilities. The executor has a fiduciary duty to follow these instructions and act in the best interests of anyone named in the will. A fiduciary duty is one of utmost loyalty, which means that the executor must not act in their own interests, but only make decisions that serve the interests of the estate and its beneficiaries.

Can An Executor Change A Will In Queensland?

An executor can change a will with the express permission of the estate’s beneficiaries. In that way, it is technically possible for an executor to “change” a will by creating a deed of variation (or deed of family arrangement). An executor can use this agreement to remove a beneficiary or change their entitlement in a will. Everyone who will have a reduced inheritance due to the change must sign the deed of variation. A beneficiary might sign this deed to ensure another beneficiary receives a larger share of the estate. For example, when the financial circumstances of the sibling beneficiaries differ, they might agree amongst themselves to redistribute the estate in a way that is “unequal“ but “fair”.

Distribution Differs From The Will

While an executor can only change a will under minimal circumstances, this does not mean that the distribution of the assets in a deceased estate will always closely mirror the terms of the will. There are several reasons why the executor might not carry out the instructions in the will as they are written.

Firstly, it may not be possible to carry out the terms of the will. For instance, the will may leave a bequest to someone who predeceases the testator. Under Section 33B of the Succession Act 1981, a beneficiary must survive the death of a testator by 30 days (although the testator can vary this requirement through contrary intention). If the beneficiary does not meet the survivorship requirement, the gift will fail. In that case, the executor will distribute the asset to the residual beneficiary, or it may pass into partial intestacy.

Secondly, if a testator dies with extensive debts, it may be necessary to sell designated gifts to pay liabilities. The executor will distribute the remaining assets in a legal order of priority, and some beneficiaries may not receive as much as they were promised in the will.

Additionally, an executor may need to “change” a will if the will is vague and the executor needs to interpret the testator’s meaning. For instance, a testator might state that her possessions should be divided equally between her two children. Some assets are not easily portioned into equal parts. In that event, the executor and beneficiaries will need to negotiate an interpretation of the will. When the will is irredeemably vague, then the executor may need to ask the Supreme Court of Queensland to decipher the testator’s intention.

What To Do If An Executor Does Not Follow A Will

The executor has the final say over the deceased estate as long as they comply with the law in Queensland. However, an executor cannot ignore the will and administer the estate as they think fit.

Beneficiaries in Queensland have a right to see the will, and in some cases, can also inspect the estate accounts. These accounts will show whether the executor has dealt with the estate according to the terms of the will. The beneficiaries can take action if the executor unlawfully deviates from the will, tries to act against the beneficiaries’ interests, or unreasonably withhold bequests. An interested party can apply to the Supreme Court to force the executor to refrain from certain actions or compel them to follow the terms of the will. If the executor is guilty of serious estate mismanagement or misconduct, the court can remove the executor from the role entirely.

The experienced solicitors at Armstrong Legal can answer any concerns you have about an executor not following the terms of a will. Armstrong Legal can also provide guidance if you are a beneficiary or executor who needs to change to a will. Please contact our knowledgeable team today on 1300 038 223 for any legal advice on a succession, probate or testamentary issue.

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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