Published 26 May 2015
Author: David Cossalter
If a loved one asks you to be the executor of their will, they are placing trust in you to have their best interests at heart when they pass away. While this is an honour for many people, it's a role that comes with much responsibility.
One of the biggest challenges of being an executor is when someone decides to contest the will, particularly if they are a close family member or friend. In these circumstances, it's up to you to resolve the situation in the best way possible.
While this may seem a monumental task, especially at such a difficult and emotional time, you should be able to achieve a beneficial outcome for all involved with the help of the right probate lawyers in NSW.
Is the claimant's dispute reasonable?
In many cases, a crucial factor for whether or not an inheritance dispute escalates to the courts is how reasonable the plaintiff's claim is. You must therefore balance the final wishes of the deceased and the likelihood that a challenge to the will is successful.
A long, drawn-out case could result in substantial legal fees on both sides, which not only creates stress and tension, but also reduces the total value of the deceased's assets.
As an executor, any costs of defending the will usually come out of the estate, so you won't be left out of pocket. However, the legal fees of the plaintiff will also come out of the estate if a judge rules in their favour, lowering the amount available to other beneficiaries.
Settlements and mediation
To prevent potentially costly court proceedings, you may want to consider offering a settlement or going through mediation. These processes are also likely to considerably reduce the length of a claim.
A settlement is typically the first step, whereby you as the executor offer the plaintiff an increased share of the available assets to prevent a claim. This is usually the most affordable approach for all sides.
However, as you're not obliged to disclose the full value of the estate, the claimant could reject your settlement, as they may believe they are entitled to more.
Mediation is the next stage, and involves an independent mediator helping both sides to negotiate a mutually beneficial outcome. You will be required to hand over all information regarding the estate, but settling a claim at the mediation stage is still more cost-effective than involving the courts.