Can An Executor Contest A Will? (Vic)

In Victoria, an executor has a range of responsibilities. One of the executor’s most important duties is defending the deceased estate against Testators Family Maintenance Claims (TFM Claim). An eligible individual can make a claim if they believe that they have not received reasonable provision under the will. However, just because the executor is the defender of the will does not mean that the executor cannot themselves make a TFM claim against the estate. If the executor is otherwise eligible, they can contest a will in Victoria.

Executor As Defender Of The Estate

The role of the executor of an estate is generally not well understood. Few people understand the obligations of an executor until they are in the position themselves.

The critical activities of an executor are to identify the assets and debts of the estate, pay the required outgoings and protect the estate assets until the executor can transfer them to the correct beneficiaries. In the course of these duties, the executor may need to defend the estate against different claims or threats. For instance, the executor may need to purchase insurance on a vehicle or arrange to change the locks on the house. In this way, the executor protects the estate’s assets against loss until they can transfer them to the beneficiaries.

The executor may also need to defend the estate in court. Someone might allege that the will is unreliable (challenge the will) or claim that they deserve a greater provision from the estate (contest the will). In Victoria, a person contests a will via a Testators Family Maintenance Claim (TFM claim).

The first step in lodging a TFM claim in Victoria is for the claimant to notify the executor/s of their intention to claim. Under the Administration and Probate Act 1958, a claimant has six months from the date of probate to lodge this claim. The Supreme Court of Victoria can allow an out-of-time claim, but the claimant needs to provide a good reason for the delay.

Before a claimant can file with the Supreme Court, they must first notify the executor of their intention to claim further provision from the estate. The executor will try and privately negotiate an outcome with the claimant. It is best for all parties, and especially the estate, to avoid the cost of a court hearing. Executors have the legal authority to settle on behalf of the estate, although an executor should take legal advice before settling a claim. If the parties cannot settle, they will proceed to a court hearing.

Can A Beneficiary Act As Executor?

An executor is often also a beneficiary of the deceased estate. In fact, it is quite common for the sole beneficiary of the estate to also be the sole executor. In that case, the executor can make whatever arrangements suit them as the sole beneficiary. Spouses will often choose to make their husband or wife their sole heir and executor, thereby maintaining normal family life if one spouse dies unexpectedly.

When there is more than one beneficiary, the testator can appoint multiple executors. However, too many executors can complicate the estate administration process, as the executors must act in concert. If there is potential for conflict between the beneficiaries, the testator should appoint a professional executor such as a solicitor to administer the estate. Alternatively, a friend or relative who is not a beneficiary can act as a neutral executor of the estate.

Can An Executor Contest A Will In Victoria?

Not everyone is eligible to contest an estate in Victoria. Under the Administration and Probate Act, only the deceased’s spouse, domestic partner, child or carer can claim from the estate. A spouse includes a current registered or de facto partner or a former spouse. A carer is anyone in a “registered carer relationship” with the deceased as defined in the Family Law Act 1975. Examples of eligible children include adopted, assumed, biological, and stepchildren who are: minors (under 18 years of age), physically/ psychologically disabled, or full-time students under 25, or adult children who are unable to provide for their own support.

When an executor is eligible under one of these categories, they can make a TFM Claim. However, the executor must renounce their role to contest the will, as they cannot defend against their own claim. The executor should renounce their role without delay and certainly before applying for probate of the will.

If you are an executor who wants to contest a will in Victoria, please contact the contested wills team at Armstrong Legal. We have experienced and compassionate lawyers who will guide you step by step through the process. We can help if you need advice about your chances of success or need legal representation in court. You can reach our team through our online contact form or telephone on 1300 038 223.