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Executors are generally appointed because of their trustworthiness and financial competence. Yet, there are times where an executor will engage in misconduct — whether that’s because of incompetence, negligence or intentional wrongdoing.
Here, we’re going to cover what executor misconduct looks like and the steps that you can take if you believe you’ve been unjustly left out of a will’s distribution.
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Firstly, let’s define the role of an executor. An executor is a person who is held responsible for managing and distributing the estate of a deceased individual. The will’s executor is generally a trusted family member or close friend; however, professionals such as solicitors and financial advisors can also serve in this role.
Executors are expected to act in good faith — in accordance with the wishes of the person who has passed.
There are instances where an executor doesn’t act in good faith, or acts negligently unknowingly. Executor misconduct can be thought of as a breach in the fiduciary (legal) duty the executor owes to the deceased and the estate’s rightful beneficiaries.
Executor misconduct refers to any action that prevents an estate’s beneficiary from receiving their due portion — particularly when the improper estate distribution results in the executor’s unrightful financial gain.
Specific examples of executor misconduct include:
At the core, executors are bound by a legal duty to fulfil the wishes of the deceased as outlined in the will, and to act with integrity, transparency and good will throughout the full estate management and distribution process.
If you’re a rightful beneficiary of a will and believe that an executor has been acting negligently, read on to learn about the steps you can take to protect the entitlements of yourself and other heirs.
While state specific legislation applies, the Australian Supreme Court has the authority to revoke probate if an executor is found guilty of misconduct and assign that responsibility elsewhere.
The process of removing an executor and seeking recompense for any losses within the estate are different. Put slightly differently, beneficiaries can apply to remove an executor, yet may or may not sue for any losses associated with the misconduct.
The courts are generally reluctant to interfere with a will’s distribution and the changing of executors following the Grant of Probate. This is shown, for example, through the difficulty of changing executors if beneficiaries are simply dissatisfied with the distribution outcome regardless of whether misconduct occurred or not. Rather, the appeal to change executors must be backed with sufficient justifications for the court’s consideration.
Naturally, misconduct is sufficient justification — whether that’s due to incompetence or intentional wrongdoing. In such cases where the executor has been negligent and considered unfit, the court will consider the relevant evidence and may appoint a new executor in their place.
Notably, the process of these appeals generally consume both time and money. There are three ways they may be funded:
At GMP Law, we offer our clients a no-win, no-fee policy, meaning that beneficiaries can apply to remove and replace an executor without the added weight of legal fees. Learn more about our no-win, no-fee policy here.
If an executor’s misconduct has resulted in damages to the estate and reductions to its beneficiary’s portions, you may choose to sue the executor for compensation.
Below is a general three step process. However, note that such proceedings are complex and require the legal advice and guidance of specialised solicitors to ensure a positive outcome.
1) Gather evidence and speak with a solicitor: As a first step, gather any and all information and records that you can that point to the executor’s misconduct. Such records may include financial statements, communications and the will itself, alongside other relevant documents. Once you gather what you can, speak with a specialised wills lawyer who will be able to guide you based on the specifics of your case and inform you on its validity.
If you and your solicitor decide that your case holds merit, you’ll then likely proceed to either mediation or litigation.
2) Mediation: Mediation is generally a prerequisite that must take place before a case can be brought before the court. Mediation is the process in which a neutral third party — who has been authorised to facilitate communication between disputing parties and make decisions accordingly — helps those involved to reach a mutually acceptable solution. During mediation, the legal counsel of each side advocates and speaks on behalf of their client, presenting their arguments and evidence to the mediator who then works to facilitate a settlement agreement.
When compared to litigation, mediation is both more cost and time effective, and is also generally thought of as a less strenuous process. If an agreement is able to be reached through mediation, such agreements are legally binding. If an agreement is unable to be reached, however, then the case will likely progress to litigation.
3) Litigation: Litigation is the process of a case being brought before a judge and/or jury who then make a decision on its outcome. During litigation and similar to mediation, the legal representatives of both parties present their case and provide the associate evidence to support their claims. The judge/jury then considers the claims in alignment with the relevant legislation to determine the outcome.
Litigation can last one or more years, whereas through mediation the case generally takes several months to resolve. No matter how your case progresses, the important thing is to have legal advice and guidance that you trust to ensure that you receive what you’re legally entitled to.
A hostile executor is someone who shows resistant behaviour toward the benefactors or other relevant parties — particularly when asked to comply with any inspections. They may refuse to provide any information on the estate’s management, for example, or show unduly hesitancy to input.
An executor showing hostility is likely a sign of executor misconduct, and is worth discussing with your solicitor.
If a will’s rightful beneficiary believes that an executor’s misconduct has reduced their portion of the estate, then yes, they can choose to take legal action. Alternatively, they may also appeal to have the executor removed, which is a different process to suing for compensation.
If you’re considering suing an executor, reach out to our team at GMP Law for legal advice based on your specific circumstances.
Beneficiaries can make an application for an executor to be removed. However, the Australian courts are generally resistant to interfere with a will’s distribution unless there is sufficient evidence to back the removal appeal. Generally speaking, simply being unhappy with a will’s distribution isn’t sufficient grounds for an appeal; rather, the executor must have engaged in misconduct of some form.
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