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    Executors obliged to defend the Will

    25/11/15 3:03 PM

    I’ve received a Notice of Intended Claim: What are my obligations?

    As an executor, you may find yourself having to fight family provision claims brought against the estate by a relative or another person with whom the deceased had a close personal relationship. This can not only be an intimidating and unexpected event for most executors, but a source of significant personal conflict.

    However, as an executor you have a duty to defend the estate against family provision claims.

    Your Duties

    You have a duty to assist the Court

    The Court aims to achieve as efficient and fair an outcome as possible. As an Executor, you have a duty to provide the Court with as much information as you possess regarding:

    • The financial affairs of the Estate;
    • The relationship between the claimant and the deceased;
    • The reasons why the deceased did or did not make provision for the claimant as they did; and
    • The composition and value of the estate’s assets and liabilities.

    You may not disclose confidential information.

    You have a duty to maintain the estate until the Court has resolved the claim

    As an executor, once you have received a notice of intended claim, you should not distribute the deceased’s estate until the Court orders it. If distributions are made from the estate and the Court later finds that the value of the remaining estate is insufficient to satisfy the family provision claim, then the executor may find themselves liable for the satisfaction of the claim.

    You have a duty to inform other potential claimants:

    While this may not seem intuitive, the Court seeks to ensure that all possible claimants are given a fair opportunity to have their claims determined by the Court. As such, as an executor, you are bound to send notices to other eligible people.   These “eligible persons” include:

    • A wife or husband of the deceased at the time of the deceased’s death;
    • A child of the deceased;
    • A former spouse of the deceased;
    • A person who was a dependent of the deceased at any material time;
    • A grandchild of the deceased;
    • A member of the deceased’s household at any material time; and
    • A person with whom the deceased was living in a close, personal relationship at the time of the deceased’s death.

    You have a duty to disclose any ‘conflict of interest’:

    A ‘conflict of interest’ may arise when:

    • The executor is a debtor of the estate and has yet to repay the loan;
    • The estate owes the executor money;
    • The claimant owes the executor money;
    • Et cetera.

    If there is a conflict of interest, the court may decide to appoint new representatives for the estate.

    If you are an executor and have received notice of a family provision claim, we recommend that you seek legal advice. Contact Robert Webb at rwebb@franklegal.com.au or call 02 9688 6023.

     

    Written by Alec Tonkin, Law Clerk

     

    This article is provided to the reader for general information. It is not legal advice.