It’s a question we hear often, and it usually comes from a place of confusion, or frustration. Someone’s been named as an Executor, or is dealing with one, and they’re wondering: can the Executor actually change what the Will says?
Maybe the Will feels unfair, has errors, or is poorly drafted. Maybe someone’s been left out. Maybe the Executor is acting outside of the spirit of what was intended. Whatever the case, the question tends to pop up at one of the most stressful points in someone’s life.
And while the idea of an Executor “changing the Will” sounds dramatic, the reality under Western Australian law is a little more nuanced.
What does an Executor actually do?
Before we can answer whether an Executor can change a Will, it’s important to be clear on what an Executor is actually there to do.
In short, the Executor is the person named in the Will to make sure the deceased person’s wishes are carried out. That means taking control of the estate, including all assets the person owned or had an interest in at the time of their death, and making sure they are properly managed and then distributed according to the Will.
An Executor’s responsibilities often include:
- Applying for a Grant of Probate through the WA Supreme Court
- Collecting and valuing assets
- Paying off any debts or taxes
- Dealing with superannuation, life insurance, or Trusts (these items can involve some special steps)
- Distributing what’s left to the beneficiaries named in the Will
In Western Australia, the Executor is bound by the Wills Act 1970 (WA) which sets out what makes a valid Will, and may need to navigate the Administration Act 1903 (WA) or even the Family Provision Act 1972 (WA) if a dispute arises.
But crucially, while the Executor has control over the process, they don’t have control over the terms of the Will itself. Their job isn’t to decide what’s fair, or who deserves what. Their job is to follow the instructions in the Will to the letter, unless the law or the court says otherwise.
Can an Executor legally change a Will?
The short answer is no. An Executor can’t just change a Will because they think it’s unfair, outdated, or should’ve been written differently.
The law in Western Australia is clear: a valid Will sets out the final wishes of the person who made it, and the Executor’s role is to carry out those wishes, not rewrite them.
But like many things in law, there are exceptions. Not loopholes exactly, but narrow, legal pathways where the outcome might look different to what’s written in the Will.
One of the most common is when all beneficiaries agree to a change. Say one beneficiary is financially secure and happy to give up their share to help a sibling in need. In that case, the parties involved, usually with the Executor, can formalise that decision through something called a Deed of Family Arrangement (we’ll touch on this later). It’s a legal agreement that varies the distribution of the deceased estate, but importantly, it only works if everyone who is entitled under the Will agrees. The Executor doesn’t get to do it unilaterally.
When an Executor might deviate from the Will
Let’s say the estate has debts–unpaid tax, funeral costs, or a mortgage that needs clearing.
The Executor is legally required to settle those debts before distributing anything to the beneficiaries. If the Will says that a property should go to a particular person, but the only way to cover debts is to sell that property, the Executor may have no real choice. That’s not ignoring the Will, that’s the Executor following the law.
There are complex rules to follow when dealing with bankrupt or nearly bankrupt estates and a particular order to follow in deciding which assets to sell to cover debts and costs. Executors in these cases should seek experienced advice.
Other times, the Will itself might be vague or incomplete. Wills that say “divide everything equally” without listing what “everything” includes can cause confusion. Executors can try to reach agreement with the beneficiaries, but if that fails, they may have to apply to the WA Supreme Court for guidance or a formal interpretation.
There are also cases where a beneficiary dies before the Will-maker, and the Will doesn’t say what happens next. If there’s no backup clause, known as a “substitution clause”, then that portion might fall into partial intestacy, meaning it gets distributed under the rules of the Administration Act 1903 (WA).
And finally, some Wills include assets that aren’t technically part of the estate, like superannuation or life insurance or assets in a trust or company, which may be dealt with separately depending. The Executor may not have control over these assets at all.
Again, these aren’t loopholes. They’re the messy realities of estate administration, and where a well-drafted Will and estate plan makes all the difference.
The role of a Deed of Family Arrangement
When people talk about “changing a Will after someone’s died”, they are usually referring to the Deed of Family Arrangement (sometimes also called a Deed of Variation).
It’s a legal document that allows the people entitled to benefit under a Will to agree to a different arrangement. In simple terms, it’s a formal agreement to vary the distribution of the estate often used to resolve disputes, avoid litigation, or address situations the Will didn’t quite account for.
National data shows that 87% of inheritance disputes are resolved through mediation, long before they reach trial. A Deed of Family Arrangement is often the tool that gets people there, allowing families to avoid drawn-out legal battles and settle things fairly and cost effectively.
A few important points to note:
- Everyone affected must agree — no one can be forced into it
- The Executor should usually be a party to the agreement
- Independent legal and financial advice is strongly recommended for all involved
- It doesn’t change the terms of the Will itself — it just changes how the estate is distributed
- Tax can be a sleeper issue!
Done properly, it’s a smart and effective tool. Done poorly, it can cause just as many problems as it tries to solve.
What happens if an Executor oversteps?
In Western Australia, Executors are held to a high standard.
If they act outside their authority, delay the process without good reason, fail to keep beneficiaries informed, or misuse estate funds, they can be personally liable for the consequences.
Our research shows that 24% of WA families expect conflict between siblings, and another 16% expect disputes due to strained relationships. Executors who go quiet, neglect their duties, show favouritism, or simply don’t act can trigger or escalate that tension quickly.
Some red flags that might justify court intervention include:
- Refusing to apply for probate
- Withholding information from beneficiaries
- Delays with no explanation
- Using estate funds improperly
- Favouring one beneficiary over others
- Failing to keep proper records
Executors can also face legal consequences if they act contrary to the Family Provision Act 1972 (WA). An example of this could be distributing the estate away before a potential claim is brought or resolved.
Bottom line: being an Executor isn’t a free pass to do whatever seems fair. It’s a formal legal role with serious obligations, and the risks of getting it wrong can be significant.
Put the right plan in place
If you’re dealing with a Will (whether you’re making one, administering one, or worried about how one’s being handled), it pays to get the right legal advice early.
Choosing the right Executor is just as important as getting the words in your Will right. The wrong choice can lead to delays, conflict, or even expensive court battles. We can help you make that decision, make sure your Will holds up, and protect your estate from avoidable drama down the track.
If you need practical, clear-headed support, our expert Wills and estate planning lawyers are here to help. Get in touch and we’ll help you get it sorted.
