When writing a Will, it’s common to appoint a trusted family member as the executor. (Read our general explainer on the role of an executor here). If just one executor is named, then they act as the sole executor. If more than one executor is named, then they must make decisions together about the Estate. However, if the executors are unable to reach a decision, then a dispute can arise.
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Disputes can arise for myriad reasons.
- Executors are also tasked with arranging the distribution and sale of Estate assets like property and valuables, like cars, jewellery or antiques. They may not be able to agree on the value of the items, the beneficiary of the items, whether to sell them, etc.
Initially, it will be up to the lawyer engaged to help with the administration of the Estate to try to resolve the issue between the respective executors. Although, if the lawyer receives conflicting instructions from each executor, this places them in a position of conflict, meaning their hands are tied until the issue is resolved.
If the executors are willing, they could engage an independent third party to act as a mediator, which would also save the cost of each executor seeking out legal representation to settle the matter. If the mediation attempt fails or an executor isn’t keen to engage with a third party, then each executor would then have to engage their own lawyer to represent them in a dispute. This is not ideal, as involving multiple lawyers can be costly, complicated and time-consuming. (It would make more sense for the executors to work through the problem themselves before seeking legal representation).
If – after all this – an agreement still can’t be reached, then the executors would need to apply to the Supreme Court for an order to settle the issues and provide a clear course of action.
Alternatively, one executor could also step down. This is known as ‘renouncing’ the role of executor, and involves signing some additional forms that are lodged with the court. The remaining executor can then solely proceed with applying for probate and administering the Estate.
When writing a Will, think carefully about who you name as your executor. Disputes and delays can be avoided when a single executor is appointed. Instead, you could name a substitute executor, in the event that your first choice is unable or unwilling to fulfil their executorial duties).
Avoid appointing family members who clash as executors in the hope that they will resolve their differences and ‘figure it out’. Instead, consider appointing an independent individual (like a qualified professional) who does this kind of thing for a living and who will have everyone’s best interests in mind.
If you find yourself in this situation, Willed have partnered with Australian Unity to offer professional Executor services. Nominating them is as easy as a couple of clicks in the Will writing journey.
If you are adamant about naming multiple executors, choose people who you think will get along and act in the best interests of your Estate. Consider whether the individuals will effectively collaborate with one another, and if any potential conflicts between them are likely to cause issues.
Lastly, consider adding a deadlock-breaking clause in your Will. For example, you could state that in the event of a dispute, you would like your executors to refer to an independent third party to resolve the matter, give one executor a casting vote in case of a dispute, or, if there are three executors, a decision could be based on the majority of the three. Specifying your wishes in your Will takes the guesswork out of the equation if a dispute does spring out of the woodwork.
Ultimately, the best way to prevent a dispute from arising is to choose a sole executor and to leave clear instructions in your Will. An executor dispute is tricky territory for everyone, including lawyers, but luckily there are ways for Willmakers to prevent them, plus plenty of guidelines and procedures to follow for this kind of thing. So don’t stress! Help is but a phone call away.
Looking for further advice on how to prevent executor disputes? We’d love to help. Talk to us via our online chat, email or by phone at 1300 945 533.