Will Your Executor Do the Right Thing?

A woman had lived with her de-facto in her unit for over 15 years. Prior to this, she had been married to another man and had two sons with him. In 2011 she died and was survived by the two adult sons and her de-facto partner. Her last will, created in 1998, appointed one of her sons and her de-facto as co-executors. She left half of the estate to the de-facto and the other half between her two sons. Her home unit was the only asset of any substantial value in the estate.

After the woman's death the de-facto continued to live in her home unit. At that time the Sons did not object. Six years later, the home unit was still registered in the name of the deceased woman and the de-facto had remarried and was living in the unit with his new wife and her children.

One of the sons sued to remove the de-facto as co-executor on the basis that the de-facto had prevented the estate from being finalised. He claimed the de-facto had wrongfully interfered with the estates’ property rights by continuing to reside in it without any entitlement to do so.

In response to this, the de-facto claimed the home unit as his own. The Court found the de-facto had no claim over the property other than what he was left in the will, and that he had delayed the final administration of the estate. The Court removed the de-facto as co-executor, allowing the sale of the property.

The home unit was sold for $245,000.00 but the legal cost of court action was about $127,000.00!

This demonstrates two key issues:

1. Estate planning is essential, and getting the choice of executor crucial to a smooth administration of an estate.

2. Difficult disputes can arise when administering an estate requiring in depth expert legal advice, and can be expensive!