Duty of Executor in an Estate Dispute

What is an Executor?

An Executor (male) or Executrix (female) is the person named in a Will to carry out the wishes of the deceased after they have passed. Their primary tasks are to administer the Estate and defend the Will when or if required.

If you are named as an Executor, you are under no obligation to accept the responsibility. Instead, if a substituted executor has also been named in the Will, the duties can be delegated to them and you will be exempt from all obligations. If no other executor is named, then you can apply to the court to appoint an administrator.

The role of an Executor generally

Being an executor is a position of great trust and importance. An executor has a legal and moral obligation to fill the role with high standards and honesty, which is why those named as an Executor in the Will are not bound to act as such. The Executor is directly answerable to the court and responsible for all the assets and liabilities of the Estate. Ultimately; however, the Executor is a trustee and must conform with the legal standards imposed on trustees.

What does an Executor defend in an Estate Dispute?

An Executor may need to defend an Estate against the following actions:

  • Challenge to the validity of a Will;
  • Claim for proper and adequate provision from an Estate pursuant to Part IV of the Administration and Probate Act 1958
  • Challenge as to the construction of terms of a Will
  • Administration of Estate assets or a trust

Role of Executor in Estate Dispute

If a Will is contested, the Executor has several responsibilities, as ultimately their role is to protect the wishes of the deceased and therefore defend the Will.

When proceedings are issued, court documents will be served on the Executor(s) of the Estate and the Executor(s) will be named the defendant(s) in the proceeding.

The Executor(s) then must respond by preparing, filing and serving evidential documents .

They also must preserve the deceased’s Estate until the claim has been considered and determined by the Court. This means that generally, an Executor cannot begin to distribute any of the deceased person’s Estate once they receive notice of a claim. This being that until the outcome is finalised, the distribution percentages could change. If the Executor does; however, distribute and the percentages change, they themselves could be held personally liable.

Last, the Executor must assist the Court in providing information regarding the financial affairs of the deceased’s Estate and anything else required. The financial information will most likely come from the inventory of assets, which would be included in the probate documents filed at the beginning of proceedings.

How much does it cost?

In most cases the costs of defending a Will can be recovered from the Estate. However, this is on the proviso that the actions of the Defendants have been reasonable and justified in the circumstances. Hence, it is another duty of the Executor to be reasonable and willing to negotiate a settlement to avoid unnecessary costs and wastage of assets of the Estate in the interest of the beneficiaries.

Ultimately, an Executor’s job can be stressful, especially when the Will is being contested or challenged. Hence, we thoroughly recommend that if you have been named as the Executor in a Will you give Hentys a call today and let us take the stress out for you!

Alternatively, if you have any queries, our Estate Dispute FAQs are a great place to start.