05 May 2023

A challenge to a Will when you are an executor – what the process looks like and what you need to know

Morgan Solomon with senior associate

Being an executor is a difficult job. We see executors who are suddenly (and reluctantly) thrust into legal proceedings every day.

If you are an executor of a Will and you have a strong suspicion a claim is going to be made against the estate before you obtain a grant of probate, you may want to consider if you should be the executor at all and if you should renounce.

Balancing roles as executor and beneficiary

This is especially so if you are also a beneficiary of the Will. As both a beneficiary and the executor you wear two hats and have very different roles and goals.

As a beneficiary, you will want to make sure you hold on to your share of the estate, but as executor, you will want to make sure the estate is administered as efficiently as possible. This can create a conflict of interest.

We work with beneficiaries and executors all the time to help them decide if they need to instruct two sets of lawyers – one for the beneficiary and one for the executor.

The executor’s role in a claim

You see as executor, your role in a claim is to be the ‘meat in the sandwich’. It is not to push one side or the other, or attack or defend. It is to make sure that the estate is looked after, that the assets are all in hand and not going to waste, and to present to the Court an unbiased and frank position of the value of the estate and the assets within it.

It is also vital as executor that you keep your legal fees as low as possible. This means not getting too involved in the actual fight itself but merely being available to assist in implementing any agreement or resolution that the warring parties may reach, potentially at mediation.

Executor’s role at mediation

At mediation, unlike a defendant beneficiary or claimant, you have a very modest role to play. It is to provide an updated statement of the assets and liabilities of the estate, so that everyone knows exactly what the true value of the estate is they are fighting over.

We can support you through the process

Being an executor is not an easy role and not without its risks no matter how simple the estate may appear. Executors need to act very cautiously in these claims, to ensure they maintain clean hands at all times. Get in touch today with our Perth lawyers and take advantage of our free 15-minute initial consultation. We can walk you through the basics of estate litigation and what you need to consider in light of the unique circumstances you may find yourself in.

Morgan Solomon is one of the State’s leading succession lawyers. His legal experience spans over 20 years and works with clients to navigate and resolve complex Wills and estate planning and probate, inheritance issues, estate disputes and litigation and business succession. He also has a wealth of experience in general commercial law. Morgan is adept at making clients feel at ease no matter the situation they are in, working with them delivering smart legal strategies and working hard to find fast and equitable outcomes.