A recent case is illustrative of the need for will makers taking care in naming the executor of there estate in order to avoid conflict and unnecessary delays and expense.
Robyn Wise died in April 2011 aged 60. Her son Shane Wise, one of her co-executors was granted probate in March 2013, of Robyn’s Will made in September 1998. Stephen Barry was living in a de facto relationship with Robyn at the time of her death and also a co-executor of her estate. Robyn’s Will left half the value of her home to her de facto spouse and the other half to her sons.
Robyn and Stephen had lived together as a couple for about 15 years since about 1996 until her death; in a home unit which was owned by Robyn estimated at $245,000 at her death, it was the major asset of the estate.
Stephen continued to reside at the property. He married in 2016 and his new wife and her children subsequently moved into the house and continued to live there.
The property remained registered in Robyn’s name and could not be sold or otherwise dealt with without both Stephen and Shane reaching an agreement. Protracted negotiations between them as to the sale of the coastal property or its purchase by the de facto spouse had failed.
Shane commenced proceedings in November 2017 seeking an order that Stephen be removed as co-executor claiming Stephen had prevented Robyn’s estate from being finalised; and sought an order that Stephen vacate the property in order that it be sold. Shane argued that by in continuing to reside in the property without an entitlement Stephen had wrongfully interfered with the estate’s property rights.
Stephen filed a cross-claim in the court contesting the will, seeking a family provision order that as Robyn’s defacto partner he should receive the whole of the coastal property because it had become his home over the years.
The court accepted that the due and proper administration of Robyn’s estate had been prevented by Stephen’s actions. As executor, Stephen was obliged to consider the interests of all the beneficiaries and just his own interests.
Importantly the court considered that as the proceedings were commenced and Shane and Stephen were unable to resolve the matter, there was no realistic expectation they would work together to finalise the estate.
In NSW unless the affected parties consent or otherwise without sufficient cause being shown for the delay a family provision claim must be commenced within 12 months after a deceased person’s death.
The court considered that as Stephen made the claim almost seven years after Robyn died and had sought legal advice from a number of solicitors during that period did not show sufficient cause. Similarly, the other beneficiaries would suffer prejudice if the court allowed the claim and the court believed that Stephen’s claim was not likely to succeed.
Although Stephen’s financial circumstances were not as strong as the other beneficiaries the court believed that as he had remained in occupation at the property, rent free, for approximately seven years, it was not satisfied that he was not adequately and properly provided for by Robyn’s will.