Can executor incompetence be used to contest a will?

Published 20 Jan 2016

Author: Garbis Kolokossian

There are a number of reasons for people to contest a will in NSW, but with the range of complex legal roles and responsibilities surrounding these documents, it can be difficult to tell if you have grounds to make a claim.

In cases where it seems like an estate has been distributed unfairly, or people have not been performing their roles correctly, it's important to enlist the services of lawyers who can help the process go as smoothly as possible.

If an estate does not appear to have been distributed as the deceased intended, there is a chance that the executor - the person in charge of ensuring people get what was intended by the will - is not respecting their role. It's essential to contest a will if this is the case, as they could be failing to perform their duties.

What should an executor do?

Executors have a range of responsibilities to attend to and it can become a difficult and stressful set of tasks to manage in the wake of someone's death.

While some of these tasks include things such as managing funeral arrangements and compiling the deceased's accounts, their key responsibilities are mostly centred around preparing an estate for distribution among the nominated beneficiaries.

As it's their responsibility to ensure the deceased's assets are able to be passed on as the will states, it's important they conduct themselves appropriately. If beneficiaries believe this is not the case, they may need to contest a will.

How can an executor make a mistake?

Depending on the size of an estate, the range of assets it encompasses and the number of nominated beneficiaries, it can be difficult to perform this role adequately.

There are a range of errors that can occur when distributing a will, many of which an executor is liable for. If the person in this role is unable to interpret a will and makes an error as a result, it could result in a contesting wills claim.

On top of this, an executor is also liable for any errors in judgement that results in beneficiaries missing out on assets they are entitled to. Whether it's because they fail to compile an estate correctly or simply overlook a detail that excludes a beneficiary, it could cause relatives to contest a will.

Extract: It’s up to the executors to ensure an estate is distributed according to the deceased’s wishes. What happens when they can’t perform this role?

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