An estate dispute can arise when the meaning of the deceased person’s Will is understood, but surviving family members are not happy with the terms and wish to challenge the Will to receive a fairer allocation.

When this occurs, we can assist either the executors or administrators to defend the terms of the Will or the beneficiaries to mount a challenge.

Regularly acting on both sides of this scenario adds depth to our lawyers’ expertise, which can then be used to the client’s advantage.

There are very strict timelines for such a claim, so please contact us as soon as possible so we can schedule a meeting and advise you of the next steps.

Applications for Approval of Compromises in Testator Family Maintenance Cases

It is common that a claim contesting a Will is settled between the parties, however, where there is someone affected by the settlement that is either a minor or a person under a disability, then any settlement must be approved by the Court in order for it to be valid.

We can act for any party involved in such applications and have successfully received approval of many settlements.

A trustee of a trust, including an executor or administrator of a deceased estate, is entitled to ask the Court what course of action he/she should take in relation to an aspect of the administration of an estate or a trust. This can often arise as a necessity, particularly to protect the trustee against future claims that he/she made the wrong decision. Basically, the trustee asks the Court a question and the Court’s answer will protect a trustee from any future claims arising from this decision provided that the trustee has acted in accordance with the Court’s advice.

In fact, it may be prudent and very important for a trustee to seek judicial advice. There are cases where the Court has held that the trustee should have applied for judicial advice and the trustees are then personally liable for costs relating to the issue or losses arising from their acts.

Similarly, beneficiaries of an estate or trust can also seek this advice from the Court. Beneficiaries can also seek orders requiring a trustee to do an act, to abstain from doing an act, to provide accounting verifying the use of estate funds, and the list goes on.

This application is made under Order 54.02 of the Supreme Court (General Civil Procedure Rules) 2015. The application can be made on any question.

These applications are not straightforward, and the Court will need to consider a variety of factors, including whether the judicial advice ought to be given. Our expertise in the area allows us to ensure the application covers all relevant aspects of the matter and the case is presented to the Court in a clear and methodical way so that the necessary answer is obtained.

Some examples include:

1. Where an executor, administrator or trustee is uncertain about the proper interpretation of the Will – it is not uncommon for clauses in Wills to be ambiguous and unclear, leaving the trustee at a loss as to what to do. A trustee can ask the Court how the clause in the Will or trust instrument is to be interpreted;

2. Whether to defend a litigation proceeding against the estate;

3. Seeking approval for the sale of an estate asset – you may seek court approval of a sale, purchase or other transaction in relation to the estate where the sale may be contentious or disputed by a beneficiary.

Beneficiaries have legal rights and there are avenues available if they are not happy with the way an executor, administrator or trustee is handling an estate.

Executors, administrators and trustees have a very big responsibility and important obligations they must fulfil. Executors, administrators and trustees must act in the best interests of the beneficiaries of the estate, maximise the estate and be prudent, even-handed and trustworthy. It is also their obligation to faithfully follow the Will or intestacy formula and legislative provisions. These obligations include a responsibility to wind up the estate as soon as possible, to keep legal costs as low as possible, and much more.

You may be able to seek the removal of an executor, administrator or trustee for things including (but not limited to):

• Delay or neglect in their role as executor, administrator or trustee (including considerable delay in estate administration);

• Failure of adequate communication with beneficiaries (this can include a failure to keep beneficiaries updated, or a failure to respond to beneficiaries about reasonable requests for information);

• Conflict of interest;

• Dispute between co-executors.

Hartwell Legal has successfully assisted clients to have executors, administrators and trustees removed in the past, to allow for a swifter or fairer estate administration.

We are able to represent an aggrieved beneficiary against the estate or an executor, administrator or trustee that is defending such a claim.

See also Deceased Estate Disputes.