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Can an executor contest a will?

When succession planning, it is important to appoint an executor to take care of your estate after your death. However, if the executor is also an eligible beneficiary to the estate, are they able to contest a will they were appointed to execute?

There is no law against appointing a beneficiary as the executor to an estate. In fact, in New South Wales, individuals are free to choose whomever they wish to carry out this task.

However, the responsibilities of an executor can involve a lot of time and effort, so many people choose a professional such as a solicitor to carry out this task.

The typical duties of an executor include finding the will, arranging the death certificate and organising the disposal of the deceased’s body. Additionally, the executor must also pay the deceased’s debts, income tax, duties and funeral expenses with finances sourced from within the estate.

Once these responsibilities have been carried out, the executor is then required to assess the value of the remaining estate and assets, arrange for a probate if needed and distribute the assets as the terms of the will dictate. If someone was to file a contesting wills case or family provisions claim against the estate, the executor would then be required to act as a defendant against this action.

However, rather than defend the will, in the case that a family member or trusted friend has been appointed executor, these individuals may decide to lodge an inheritance dispute if they believe they have been unfairly provided for in the will. In order to do so, the individual must step down from the role of executor.

To renounce their position as executor, the individual hoping to contest the will needs to sign a formal renunciation agreement and file this form with the Supreme Court of NSW. This needs to be done as soon as possible, as the application may not be valid if some executor duties have already been carried out.

Once the original executor has renounced their position, the Supreme Court will generally appoint a major beneficiary in the will to take their place. In some cases, the NSW Trustee or an alternative beneficiary can also be named as the administrator of the estate.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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