What to Do When You Don’t Trust the Executor of the Estate

What to Do When You Don’t Trust the Executor of the Estate

Voltaire, the great French author first said the phrase “with great power comes great responsibility” only to have it memorialised into popular culture through a cautionary warning to a young Spiderman. As it turns out, Uncle Ben’s words of wisdom are a timeless reminder for executors of deceased estates in Queensland.

The executor of a deceased estate is entrusted with significant responsibilities, including managing assets, paying debts, and upholding the last wishes of the deceased. An executor of the estate is always expected to act in the best interests of the estate as whole, including the named and potential beneficiaries.

However, what happens if you feel that the executor of the estate is unlikely to fulfil their duties honestly, but you do not yet have evidence of actual wrongdoing?

As in many situations, prevention is the best cure. A beneficiary can exercise the below rights to keep an executor accountable and remind them of their obligations, whilst minimising the costs to the estate incurred by going to court.

The Role of an Executor

An executor of the estates’s primary duty is to administer the estate in accordance with the terms of the will and in accordance with relevant legislation surrounding succession and trust law. Section 52 of the Succession Act 1981 (QLD) (“the Act”) is the starting point that contains the duties of the executor. These include:

1. Collecting the assets of the estate and taking inventory;
2. Meeting the reasonable expenses of the estate (including the funeral);
3. Seeking a grant of probate or letter of administration; and
4. Distributing the estate in accordance with the last will of the deceased.

Beneficiary rights

While the rights of beneficiaries are limited in comparison to the broad powers of the executor of the estate, the Act gives beneficiaries the following specific rights:

Right to be notified of their interest

An executor must inform any beneficiary under a will of their entitlement. This also extends to potential beneficiaries, as an executor must make reasonable attempts to ascertain the intended beneficiaries under a Will, if their identities are not apparent on the face of the will.

Right to see the Will

1. Under section 33Z of the Act, the following classes of people have the right to inspect, or be provided with a certified copy of the Will:
   1. A person mentioned in that Will;
   2. A person mentioned in earlier Wills;
   3. A spouse, parent or child of the deceased;
   4. A parent or guardian of anyone who falls into the above categories;
   5. A creditor of the Estate.

Right to request an update on the administration of the estate

A beneficiary of an estate is entitled to receive timely updates on the administration of the estate, including a summary of the efforts that have been made and lists of assets and liabilities of the estate.

Right to distribution within a reasonable timeframe

Under section 52(1)(e) of the Act, an executor may be liable to pay interest on a monetary gift if its distribution is delayed beyond one year of the date of death. There are of course many reasons why this delay may be reasonable, including third party interests, age limitations, complexity in the estate and most significantly, the conduct of the parties.

Right to challenge a will if a person believes they have not received adequate provision

Under section 41 of the Act, a child or dependant may apply to the court for a greater share of the estate than they were provided (if at all) under the will. This is referred to as a family provision claim, and is intended to take into account the “moral obligation” the deceased has to their children or dependants upon death. Generally, a claimant with greater need (financially, socially, physically) will be entitled to greater provision from the estate if it has not been provided.

How can you go about enforcing these rights?

Engage a lawyer

Engaging an experienced Estate litigation lawyer signals to the executor that you are serious about ensuring proper estate administration. The advantages include:

1. Providing legal advice on your rights and options of which you may not have been aware;
2. Communicating directly with the executor of the estate on your behalf (especially where that relationship has deteriorated);
3. Viewing the matter with impartiality, and commercial and practical sense while protecting your legal rights;
4. Mediating between parties where the circumstance of the executor(s) and beneficiaries give rise to a power imbalance or familial pressures; and
5. Escalating the matter to court where it is necessary to do so.

Probate Caveats

A probate caveat is a legal mechanism that prevents the executor of the estate from obtaining a grant of probate and administering the estate until the court resolves the concerns or the parties agree to release the caveat. Without a grant, the purported executor cannot begin to undertake their duties and deal with any of the assets of the estate.

A caveat can be a powerful tool in cases where there are valid reasons to question the executor’s suitability or actions, but should only be lodged with proper justification. The circumstances that can sustain a caveat include:

1. If there are allegations of undue influence or fraud in the creation of the will;
2. If the executor of the estate is unfit to act due to misconduct or a conflict of interest;
3. If you suspect the executor is attempting to act without properly administering the estate (and have evidence of this);
4. You suspect that the will is defective, that is, that the testator lacked mental capacity or that it was not witnessed correctly.

The onus is on the Caveator to support the caveat with strong evidence, as baseless caveats can be dismissed and may result in legal costs being awarded against the caveator personally.

Seeking Legal Advice Early

Above all, if you have concerns about the executor of the estate’s conduct, it is essential to act promptly. Delays can complicate matters and increase the risk of estate mismanagement. It is far easier (and cheaper) from a legal perspective to prevent wrongdoing than to claw back assets that have been wrongly removed from the estate.

At Rostron Carlyle Rojas Lawyers, we have extensive experience in estate administration disputes, and are able to assist at all stages of administration and litigation with commercial and practical advice.

Contact our partner Michael Sing today on 07 3009 8444 or by email at [email protected] to discuss your concerns and find out how we can assist you in protecting your interests.