Contesting a Will in NSW.
Welcome to the complicated world of Contesting a Will. Hereunder we have summarised the law relating to the various types of applications to the Supreme Court that are available. People involved in these contests, challenges or disputes either resolve the problem with the assistance of their lawyers, one will make an application to the court whereupon a judge will resolve the problem for them.
1. Contesting a Will. Family Provision Claims.
2. Challenging the Validity of a Will.
3. Seeking Reconstruction or Rectification of a Will.
4. Seeking Court orders involving the 'Ademption Rule'.
5. Applying for orders in relation to the 'Forfeiture Rule'.
6. Executors acting Badly. Administration of the Estate.
1. Contesting a Will. Family Provision Claims.
If you've been left out of a Will or not properly provided for, you will be seeking provision out of the Estate from the beneficiaries, failing which you will apply to the court for a Family Provision Order. The first thing you need to do is seek quality legal advice as to whether or not you would be successful if you made a claim. All claims are different because all families are different and some of the 'rules' are able to be legally bent or even legally broken because judges have wide powers and discretion in these cases. The same applies during negotiations and at mediation...experience is everything. So, chose a solicitor qualified to give you accurate advice. It is important to start off on the right foot because not all claims are guaranteed to succeed.
When contesting a Will, one of the most important elements for success is to have a very good personal relationship with your solicitor... and for your solicitor to have a very good relationship with your barrister. In the will contest process your solicitor will be obtaining from you very personal details of your finances, health and family, so a high degree of trust and understanding is required by both solicitor and client.
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Grounds to contest a will:
The absolute basic requirement is (A) you must be 'eligible' and (B) you must have a financial need and (C) you must be able to convince a judge that the deceased had a moral obligation to provide for you but failed to. More about these under.
A. You must be an 'eligible person'.
Eligible persons include married spouses, de facto spouses, children of all ages, step children of all ages, grand children of all ages, same sex relationships and close personal relationships. Following is some more information on each class of eligible persons.
Married spouses and de facto spouses.
You will hear from non lawyers that there is no difference between the two. In fact there are many very important differences that can cause difficulties. Because the length of a 'marriage' is important in these cases let's look at the difference between the two.
Start Date for a surviving married spouse: the spouse need only produce his or her marriage certificate to demonstrate the date the marriage commenced.
Start Date for a de facto marriage is often very difficult to prove. You need to provide evidence of the start date for the judge, yet frequently the surviving family members will be poles apart on an agreement of the date. The relationship often starts as a friendship and develops into de facto relationship.
End Date for a surviving married spouse: the spouse need only produce his or her divorce certificate to demonstrate the date the marriage ended.
End Date for a de facto marriage again, is often very difficult to prove. The relationship may have been 'on and off' for many months or even years and that makers a judges job very difficult.
Children of all ages.
Children under 18 years will always have a strong claim for provision simply because they are not yet an adult. However, a very young child will obviously have a stronger claim for provision which would include the basic things such as food and clothing and of course schooling. Children over 18 years but still in the process of College or University will also have strong claims for the expenses involved. Mature adults from anywhere from the age of 18 to 70 or 80 years will also have a claim so long as they can demonstrate financial need.
The same applies as above... except a step child may have a much shorter relationship with the deceased which will be very relevant to the provision he or she could expect.
Similar to the above two categories except a grand child must prove in addition the financial need, that they lived in the same house with the deceased and were dependant upon the deceased. The length of time in the same house is important and also the degree of maintenance provided to the claimant.
Same sex relationships.
Same sex relationships are no different to married or de facto spouses. The same rules apply.
Close personal relationships.
The relationship must involve the applicant living with the deceased and as you would expect the period of time they lived together is very important. In addition to living together they must provide personal care to each other however they do not have to prove a de facto relationship.
B. You must show you have a financial need for provision.
To be successful you must demonstrate that you have a financial need greater than that of your competitors (usually other family members) and that the estate is large enough to provide for you without greatly affecting the share of the other competitors and the beneficiaries named in the will. Financial need will vary from family to family and the amount of money and property in the estate for distribution.
Take two extreme examples. One case involves an estate valued at $20 million and there are two children opposing each other. The claimant owns a house valued at $2 million with a mortgage of $1 million and a wage of $200,000 per year. Because there is enough money in the estate, so long as there was nothing 'bad' about the claimant a judge would make an order for provision.
In another case the estate is valued at $500,000 and involves one claimant and 6 children. Again, the claimant owns a house valued at $2 million with a mortgage of $1 million and a wage of $200,000 per year. There is not enough money in the estate so the claimant in that case has no financial need. So financial need depends upon the size of the estate and the number of 'competitors'.
C. You must show the deceased owed you a moral obligation to provide for you.
Your solicitor will include in your affidavit of evidence, details of your relationship with the deceased to attempt to demonstrate that under all of the circumstances of that relationship the deceased did owe you an obligation yet failed to make adequate provision for your proper maintenance and support.
The evidence a judge needs to order you provision.
The following a list of more specific 'Grounds' the court will take into account when you make an application for provision out of the estate.
- Your financial need is the most important consideration to be established;
- Your character and conduct and relationship with the deceased;
- Any obligations or responsibilities the deceased owed to you;
- Any contribution you made to the estate or the welfare of the deceased;
- The size of the estate and any estate liabilities;
- Your financial position compared to other competitors;
- The financial circumstances of any other person cohabiting with you;
- Any physical, intellectual or mental disability you may have;
- Any provision made by the deceased to you during your lifetime.
More on what a judge will take into consideration.
1. Some family members have priority over others.
2. The court will not change a will just because it is unfair.
3. All applications for provision are based upon the financial circumstances and the health of each family member as well as the extent to which the family member was dependant upon the deceased during his or her lifetime.
4. De facto spouses have basically the same rights as married spouses.
5. If you are financially secure it is most unlikely that you will have a successful claim, unless there are special circumstances include a very large estate.
6. Any contribution that you made to the deceased estate or financial health or well being may be taken into account.
7. Certain family members can expect more provision than others.
8. For example spouses are generally regarded as having more need than other family members.
9. The length of a relationship such as a spouse relationship is very important. For example a spouse of twenty years or more will have a very strong claim.
10. The different family member is also important. For example, all other things being equal, generally a child will have a stronger claim than say a stepchild or grandchild.
11. Another example, all other things being equal, generally a spouse will have a stronger claim than children, stepchildren or grandchildren.
12. Another example, all other things being equal, generally someone who had a close personal relationship with the deceased and who was dependant upon the deceased will have a stronger claim than children, stepchildren or grandchildren.
13. However the length of a relationship is also very important. For example a stepchild may have a stronger claim than someone who had a close personal relationship with the deceased for only a short time.
14. Another example, all other things being equal, generally a young child will have a stronger claim than older children, stepchildren or grandchildren.
15. Another example, all other things being equal, generally a disabled child will have a stronger claim than older children, stepchildren or grandchildren.
16. Whilst I have suggested some basic principles above, every case is different. Every family member has different financial needs and different health requirements and a different relationship with the deceased.
17. As lawyers our job is to look at the personal circumstances of all family members involved in each type of claim. Only then can we give responsible advice to our clients (whether we represent claimants or beneficiaries). And only then can we hope to achieve an agreed settlement.
18. So, whatever the type of case, as lawyers we must look at the circumstances of every family member and attempt to sort out who should receive what (in accordance with law). A good lawyer will give good advice and sufficient for you to settle a claim without the need to go to court.
19. If clients reject good advice they do so at their peril because going to court to have a judge decide a claim is like going into a casino except win or lose everyone (except the lawyers) lose in some way, either financially or emotionally.
20. And of course every case is different because every family is different. And 'rules' can be 'broken' because judges have broad powers and wide discretion.
2. Challenging the Validity of a Will.
Most cases involve elderly will makers in circumstances where allegedly someone is trying to take advantage of them. It is not uncommon for elderly will makers to be taken advantage of by family members or so called friends or carers, however the problem we face as family members and lawyers is actually proving that at law the will involved was not valid. The onus of proof is almost always upon the person alleging the invalidity.
The first question for a court to determine before any proceedings following the death of a person is... is the will valid? If not the court will look at prior wills and if no prior wills the court will follow the rules on 'intestacy'.
A will maker may make several wills during his/her lifetime especially as one gets older or nearer to death. The court may be required to look at several of those wills during a case especially the wills near death. The court process is to determine which one of the last lot of wills is valid.
Contesting a will on the grounds the will maker did not have the required legal mental capacity to make a will.
Another term used for lack of mental capacity is “cognitive impairment” which greatly increases from age 65. According to the Australian Bureau of Statistics one in 15 people over 65 – increasing to one in four people over 85 – suffer from dementia. It is also estimated that each week in Australia 1600 new cases of dementia are diagnosed, a figure expected to grow to 7400 a week by 2050.
Dementia is described as a chronic or persistent disorder of the mental processes caused by brain disease or injury and marked by memory disorders, personality changes, and impaired reasoning, a chronic or persistent disorder of the mental processes caused by brain disease or injury and marked by memory disorders, personality changes, and impaired reasoning.
So, you can imagine that there may thousands of people in society who would be attempting to write a will either with or without a solicitor’s assistance and many of these will makers may have dementia. However, in these cases, all adults are presumed to have capacity, unless the contrary is established, in court, on the balance of probabilities for a judge to determine.
No one can stop any person from writing his or own will, with or without cognitive impairment, and it is only after the death of the will maker that a judge will be asked to determine whether or not the will is valid. On the other hand a solicitor is required to follow a client’s lawful, proper and competent instructions when preparing a will. When there are certain factors present, solicitors have a duty to ensure the client has the requisite legal capacity before either taking instructions or assisting them to make a will.
Let’s take an example...
of an alleged mental incapacity case such as alleged dementia and say a case of a will maker in his/her late 90’s. In New South Wales, a carer, friend or other family member may organise the will to be signed (in their favour) when the will maker is not really in a position to understand and approve the will. Another example is the will maker being paranoid or delusional and making a will that's influenced by their delusions to the effect he or she did not possess the required mental condition at law to be able to make a will.
Other family members may be aware that the elderly will maker has dementia but it’s not until the will maker dies that they are confronted with the new will. Then the family members need factual evidence to prove the will maker lacked mental capacity at the time the will was signed and that evidence may not be available.
The evidence required to convince a court that a will maker lacked the required mental capacity must be factual. If the will maker was absolutely clearly medically unable to approve that may not be too difficult a case. However when the mental incapacity is not so clear the evidence must be around the time the will was signed and often that evidence is hard to find. Doctors in NSW often give evidence of what they observed many months or even years before the signing of the will but if the patient (will maker) was ‘in and out’ of mental capacity from time to time the doctors evidence may be uncertain and insufficient to prove the will makers lack of knowledge and approval.
Family members may be absolutely convinced their mother or father did not have mental capacity at the time the will was signed but simply cannot convince a court because there is insufficient factual evidence to convince a judge.
Contesting a will on the grounds that the will was written at a time when the will maker was being unlawfully influenced by others.
Sometimes this challenge is alleged together with and at the same time as lack of mental capacity and lack of knowledge and approval because all three allegations are often every closely related and the same evidence is used in relation to each challenge.Challenging the validity of a will on the grounds of undue influence (alone) is extremely difficult to win and accordingly very few cases have ever been successful. Over the past 100 years only three cases have been successful; one each in NSW, Victoria and Queensland.The onus of proving undue influence rests upon the person making the allegation and he/she must prove beyond doubt that the deceased will maker at the time of signing the will was actually unlawfully influenced. The two biggest hurdles to overcome is firstly the fact the will maker is no longer available to give evidence and secondly the influence alleged would have to be around the time of the signing of the will.In these cases common sense does not prevail. You and I may be fully aware that family member/s or a friend or carer has influenced the will maker by continually asking to be left in the will or even making threats about not looking after the will maker in his/her old age unless included in the will.However at law this type of influence is not sufficient to win the case. The influence required is actual duress (force) almost like holding a gun to the head of the will maker. Badgering the will maker is not regarded as undue influence. Continually harassing the will maker to include you in his/her will even to the extent of taking the will maker to your solicitor is certainly wearing him/her down however is not (in wills law) ‘undue influence’.However there is some good news. When all of the evidence is before the court regarding lack of mental capacity, lack of knowledge and approval and undue influence sometimes there is sufficient evidence for a judge to determine the will is invalid for one or more of the above reasons
Let’s take an example...
of a case of alleged undue influence being placed upon the will maker. There have been very few successful cases in Australia over the past 100 years because they are particularly difficult to prove unlike for example a case of undue influence upon a living person (who may be able to give evidence about the facts himself/herself).
As lawyers we know of many cases where family members have influenced the will maker to make a will in their favour. The problem we face however shocks many people. It is not against the law to influence a will maker. It is only against the law (making the will invalid) if the influence involved actual duress. In other the words the process involved actual force mental or physical and that the will maker was not later able to revoke the will and reverse the contents forced upon him/her.
It is difficult to prove that the Deceased person was influenced to make their will because they are not able to provide evidence to the court that influence was exerted upon them. Sometimes there are no witnesses to a person being influenced to make their will and that might mean that there is no evidence available. It is not enough to simply prove to the court that a person had the opportunity to exert influence over a deceased person, you need to prove that influence was actually exerted.
Contesting a will on the grounds the will maker did not have full knowledge of and give his/her approval of the will.
This type of will challenge is very similar to lack of mental capacity and sometimes they are both conducted in the course of a hearing before a judge at the same time. Of course
If a will maker did not have the required mental capacity to make a will (also known as lacking testamentary capacity, mental capacity) then clearly that will maker would not have the knowledge nor given his or her approval to the will because they were incapable of doing so at law.
However lack of knowledge and approval can apply when a will maker does have testamentary capacity and for example could occur when a will maker of sound has signed a will not fully understanding its contents and thereby not giving his or her approval to the will.
Take a case where the judge has decided that the will maker did indeed have testamentary capacity but then goes on to look at the evidence as to whether the will maker did not have knowledge of the contents of the will and therefore did not give approval to it. In such a case the judge might decide that the will maker was mentally capable of making a will but at the time of signing the document he or she did not understand the contents.
The rules regarding the preparation and signing of a will are very important in society to ensure the correct transfer of the assets to the person or persons intended by the deceased.
Contesting a will on the grounds that the will was not the will of the deceased but in fact a fraud or forgery.
Challenge the validity of a will on these grounds usually does not involve the will maker. The allegation of course is that the will being challenged is not that of the deceased at all. The onus of proving the fraud or forgery rests upon the person/persons making the allegation. The evidence required is usually from one or more experts in the field of handwriting, pencil, ink, paper, photocopy machines and any other evidence proving a fraud or forgery.For example there have been several cases of will makers signing a document placed in front of them not knowing it was their will. And, other cases where documents containing the signature of a person on a document being photocopied onto a will then being produced as that person’s will. And, of course there have been many cases of people simply forging the signature on a will. Cases involving fraud and forgery also require factual evidence.
For example...
a person committing fraud may obtain the signature on a will by telling a blind or partially blind person that the document they are signing is some other document when in fact it was their will.
Another example is cases involving forgery where a person committing forgery forges the will maker’s signature. Both of such examples require factual evidence sufficient to convince a judge however, unlike alleged mental incapacity or alleged undue influence, luckily there days we have access to forensic professionals who are experienced in actually providing evidence from imprints on paper and comparisons of signatures that do convince a court of foul play.
Challenging. The Process.
After selecting an experienced NSW solicitor (preferably a wills and estates accredited specialist) you will provide him or her with information about the deceased, the will/s of the deceased and some details of the beneficiaries named in the will/s. There may be several wills involved and your solicitor will know what to ask you and what documents for you to provide.
Experienced solicitor.
An experienced solicitor will give you some advice about the process involved in either challenging a will or defending a will in NSW. However at this stage he/she will not be in a position to give you any idea of the likely outcome of the case. Your solicitor will be unable to give you any advice in that regard until much more evidence is obtained from witnesses and from documents.
Standing to apply.
If you intend challenging the last will of the deceased you can only do so if you are named as a beneficiary in an earlier will or you would be entitled to a portion of the estate under the rules of intestacy (where there is no will).This called having standing to apply.
When you produce all the evidence to your solicitor he/she will give you some advice about the prospects of success and you then need to make a decision as to whether or not you want to stop probate being granted and challenge the validity of the will. If you decide to challenge the will, whilst there is no real time limit for you to do so it is far better to make the challenge before probate is granted.
Don't delay.
Whilst you are discussing challenging the will, the executor/s named in the will may be preparing an application for probate (proof of the will). The executor/s may not know you have been investigating the validity of the will and they may apply for probate depending upon the complexity of the estate assets, say within two or three months. However there is no reason why an application could not be made within say 28 days.
After probate.
If probate is granted before you make your application you are still able to make your challenge to the validity of the will by making an application to revoke the grant of probate. However this is not the preferred method. The preferred way to challenge the validity of a will is to lodge a caveat at the probate office of the Supreme Court thereby preventing probate being granted until either there is a determination by a judge or you withdraw you caveat.
Lodging a caveat.
If you lodge a caveat you must be prepared to go to court possibly within days or weeks to answer a summons as to why your caveat should not be removed. You, your solicitor and barrister will be required to attend court before a judge of the Supreme Court and provide evidence sufficient to show some doubt as to the validity of the will. If the judge agrees with you he/she will allow the caveat to remain in place until the executor/s makes the application for probate in the form of a Statement of Claim attempting to prove to the court that the will is indeed valid.
If your caveat you lodged was found to lack merit (the judge believed there was no doubt about the validity of the will) you would be liable to pay the costs of the proceedings to that point. Also, if after lodging the caveat you later (before the caveat hearing) decided you wanted to withdraw the caveat you would be liable for the executors costs incurred to that point, if any.
Judge allows caveat.
The fact that a judge has allowed your caveat to remain in place preventing probate without a hearing does not guarantee you will win the final hearing. Now every case is certainly not black or white. You and the opposing executor/s (other beneficiaries) may realise there is room for compromise and wish to settle the dispute out of court.
Court approval.
However, you cannot decide on the validity of a will between yourselves or your legal advisers. If you come to an agreement about the validity of the will on legal grounds your legal team may present the facts to a judge and attempt obtain his/her approval as to the validity of the will. If the judge agrees he/she will make orders as to the proper administration of the deceased estate.
Preparing evidence.
If the challenge is not settled each side will prepare their case for hearing before a judge. Evidence can be from individual witnesses such as family members, doctors, solicitors, handwriting experts and others. Hearings of this nature are often over a few days and are nearly always very expensive. They involve a lot of preparation in addition to the days in court. Generally the loser pays. The exception to the rule is if the judge considers the proceedings were required because of the fault in some way of the will maker.
3. Seeking Reconstruction or Rectification of a Will.
The construction or rectification of a will.The general principles of ‘Construction’ and ‘Rectification’ law in Australia are the same for each State. In NSW however there is specific provision in the Succession Act 2006 to rectify NSW wills. The general rules apply when the will maker fails to make his/her intentions clear in the Will itself or makes an error in the will. Only a judge can make that determination following a court case with all the evidence put forward.
If the will maker expresses his/her intentions clearly and best of all in simple language, there will be no argument as what was meant and as well, simple errors will judged as simple errors if the will is otherwise clear. As usual in wills and estates work every case will be different.
The judge must make a decision in these cases as to what was meant by the will maker, not guess the intention and generally cannot hear evidence about intention of the will maker but rather to come to a conclusion by looking at the words of the will itself. A judge cannot simply.
The only time a judge may permit evidence to be given in court regarding the will maker’s intention would be in a case involving ambiguous terms in the will and the judge would entertain evidence regarding the will maker’s use of certain words or terms during his/her lifetime which may have a different meaning to the usual meaning.
So, construction and rectification cases are very legalistic. In most cases common sense will not prevail as the law is to be strictly adhered to which many people find very frustrating. You may feel you know precisely what was meant in a will and that in your eyes there is no ambiguity or incorrect words however I court /judge may hold a completely different view. As usual the loser pays the costs unless the court considers the case was somehow the fault of the will maker or his/her solicitor.
4. Seeking Court orders involving the 'Ademption Rule'.
The word ‘ademption’ is a legal word meaning ‘taking away’.
Ademption can occurs when an item gifted in a will is no longer available to the intended beneficiary when the will maker dies. For example the will maker may have sold his/her house or car (gifted in the will) before his/her death leaving no gift to the named beneficiary. In other words the will maker no longer owns the item and the gift is then must fail.
However, whilst the ademption rule may be fair in most cases (if intended by the will maker) it can lead to allegations of unfair play and disputes over unintended outcomes. Each Australian State has slightly different rules in relation to the exclusion to the ademption rule. One common law rule that NSW, Victoria and Queensland share is that if the will maker’s property was transferred out of the will maker’s ownership by foul means, in that event the gift will not fail and court orders may be sought to protect the intended beneficiaries rights.
In NSW the law provides for an exception to the rule in circumstances where the will maker's State appointed substitute transfers property out of the will maker's name and not approved by the will maker.
Hereunder I will summarise various facets of NSW Will Dispute Law which differs slightly from other Australian States. As I have mentioned in other pages on this site the law is much the same in all Australian States however the specific wording in the legislation of each State can be a trap for will dispute lawyers and their clients. Judges in court proceedings are very often limited in their determination of a case by the precise wording of legislation or practice notes and procedures of a particular State.
A dispute over a Will can arise for many reasons not related to a challenging the validity or contesting like family provision. 'Disputes' are often an argument as to what the will meant; how the will is being administered or distributed; whether there are errors in the Will; whether a beneficiary named in the Will is not entitled because of a crime committed; removal of an executor or administrator or other disputes about the use of a ‘power of attorney’ during the deceased lifetime.
5. Applying for orders in relation to the 'Forfeiture Rule'.
The basic principle/rule is that a person should not benefit from another’s will if that person caused the death of the will maker. As usual, nothing is so black and white. We would all agree the rule should apply to a vicious and cowardly killing but what about for example a killing response to domestic violence or assisted suicide. Whatever you view, the law in NSW is governed by the Forfeiture Act 1995 whereas in Queensland this is no similar law and virtually no exceptions to the rule.
In NSW the law allows for applications to the court to vary the rule and the court will consider such things as the conduct of the offender, the conduct of the deceased, the effect of the rule on the offender and any other person.
The forfeiture rules applies in all states of Australia however each State has it’s own slight variations. The reason this subject is included in this section relating to will disputes is because the rules sometimes allow for the discretion of the court in certain cases and also there is sometimes an element or allegation of the mental illness of the killer which may affect a court’s decision as to whether or not to apply the rule.
Following a killing, the rule takes away from the killer any benefit he/she would normally have received from the death of the person killed. A death may be at the hand of the offender or by car accident or other unfortunate circumstance and for that reason there is sometimes a dispute that requires a court action to determine whether or not the rule should be applied.
Some of the cases a court might be asked to consider include those involving joint tenancies where under normal circumstances the property by law automatically transfers to the surviving joint tenant, except for the forfeiture rule. The mental illness of the killer may be a factor to take into consideration bearing in mind the basic fundamental at law that a person must have the required mental capacity to be said to have committed a criminal offence. Also the unforeseen consequences that might follow for the family members of the killer if the rule is applied.
6. Executors acting Badly. Administration of the Estate.
Generally speaking an executor or administrator has at least 12 months in which to administer the estate and distribute the assets to the beneficiaries. Accordingly unless there were extreme reasons you would not commence proceedings against an executor or administrator with 12 months from the grant of probate.
There are probably more arguments about the administration and distribution of an estate than any other area in wills and estate law.
The fault I believe lies in the fact that most beneficiaries are not told about their rights and the role of the executor and administrator from the very beginning. Let me explain;
To begin you must understand that at law when probate or administration is granted to the executor or administrator that means that that person or those persons or the ‘Public Trustee’ or other similar body have been granted the assets of the estate in their name to deal with in accordance with law. In effect they can deal with the assets as if they were their own because legally they own the assets (as trustee for the beneficiaries).
So, if the executor/s or administrator/s have such rights they can administer the estate the best way they see fit and generally there is nothing the beneficiaries can do about it (for about the first 12 months). The beneficiaries are not entitled to tell the executor/s or administrator/s what to do or how to do it. And, the executor/s or administrator/s do not have to ask the beneficiaries permission to do anything or even in most cases even tell them what is being done.
However once a sufficient period of time has passes (usually about 12 months) and beneficiaries are not happy about the administration or distribution of the estate they can commence proceedings to attempt to rectify the position including claiming negligence on the part of the executor/s or administrator/s and seeking refund of money wrongfully transferred or interest on money which was held back.
Please note that whilst I have referred to complaints to be made after about 12 months there certainly are many cases where proceedings against the executor/s or administrator/s are warranted well within 12 months. Some complaints are more urgent than others so as usual, every case will be different. In the next paragraph I have set out in summary the role of executor/s or administrator/s and you will observe that there are many areas where a dispute may arise and some would obviously need to be addressed sooner than others.
The duties of executor/s or administrator/s include;
1. Locating the will of the deceased if not already in their possession.
2. Arranging burial or cremation of the deceased.
3. Choosing a solicitor to help them if necessary and avoiding any conflict of interest in the choice.
4. Ascertaining and itemise the assets and liability of the estate.
5. Obtaining with the help of their solicitor a grant of probate.
6. Collecting all the assets of the estate possibly including superannuation funds.
7. Paying out all debts of the estate in readiness to distribute the net assets of the estate.
8. Lodge tax returns and pay any Federal or State taxes.
9. Ensure the value estate has been preserved (or enhanced if applicable) and to defend and claims against the estate believed to be without merit.
10. Compromise any claim against the estate believed to have merit.
11. Distribute the estate to the beneficiaries in accordance with the will or rules of intestacy.
Revocation of probate: executor negligence, fraud or conflict of interest.
If there is sufficient evidence to remove an executor or administrator from that role the court will revoke the grant of probate or the grant of administration and appoint another administrator.
Only a person having a beneficial interest in the estate can make an application for a revocation of a grant. There is no time limit and an application can be made at an early stage. In fact an application can even be made before the grant is made. However, whenever the application is made, the evidence against the executor or administrator must be precise and strong.
Allegations of negligence and/or fraud will be a matter of factual evidence and should be relatively simple to determine because there is no court discretion involved, just facts. In other words there will be negligence or fraud or not. However when it comes to an allegation of conflict of interest the allegations may be harder to prove.
As usual the loser pays the legal costs in court proceedings unless the judge thinks otherwise.
