Contesting the incomplete distribution of assets by an Executor
Published 12 Jul 2013
Inheritance Disputes often arise when one or more parties disagree on the adequacy of the provision made for them in the Will of a loved one.
Sometimes, however, they can precipitate even when all concerned agree on how the deceased has decided to distribute their Estate.
That is because a Will is essentially just a list of instructions. It cannot see to the distribution of someone’s legacy on its own – that responsibility falls to the Executor.
This is the person, usually named by the deceased in their Will, who is tasked with carrying out their wishes with regard to their Estate.
Their duties include arranging for the funeral of the deceased, making a list of and gathering assets, paying funeral and other expenses from the estate, and then distributing the remainder according to the instructions in the Will.
The Executor will also need to deal with any claims made against the Estate, certain of which can be made by parties who believe the wishes of the deceased have not been followed.
A recently resolved Inheritance Dispute here in New South Wales provides an example of this sort of claim.
In this case, the deceased passed away in 2008, having made a will in 2007 in which he appointed his son (the defendant) as Executor.
One of the instructions given in his Will directed that $20,000 be given to a woman (the plaintiff), however the defendant only paid $2,000 of this legacy to them.
No explanation was given and the plaintiff tried on numerous occasions to seek one from the defendant, both on her own and through legal representatives, without success.
Not knowing what was happening with the administration of the Estate or when she could expect to receive the balance of the amount due her as per the directions of the deceased, she decided to contest the administration of the Will.
The defendant was given numerous opportunities to clarify the impartial fulfilment of the plaintiff’s portion of the legacy, but responded to none.
Neither did he attend the NSW Supreme Court hearing for the case.
At the end of the proceedings, the judge ordered that the plaintiff was entitled to the full payment of the $20,000 as stipulated in the deceased’s Will.
Further, the defendant was ordered to pay the plaintiff’s legal costs on the indemnity basis, so that her legacy would not be diluted by the cost of fighting for it.
If you are involved in any kind of Inheritance Dispute, get in touch with specialist Contesting Wills lawyers in NSW today for expert advice on the best way to proceed.