Law Talks Episode: Navigating family disputes during estate administration

Robyn: Good morning and welcome to another edition of law talks here on 4CRB.

Today we’re tackling a situation many families find themselves in when everyone isn’t quite on the same page during the administration of a loved one’s estate.

Even when a will is in place, emotions can run high. One sibling might believe they were promised something that’s not in the will. Others might question who’s in charge or disagree over whether to sell the family home.

Joining us to help unpack these common and often tricky family dynamics is Angela Harry, a Partner at Attwood Marshall Lawyers who specialises in probate and estate administration. Angela, thanks for being here this morning.

Angela: Thanks for having me.

Robyn: Angela, what happens if someone in the family believes they should have been the executor instead of the person named in the will?

Angela: You would be surprised how often this comes up in estate administration. We often get upset family members who have an expectation that they should have been appointed as executor for whatever reason.

At the end of the day, the person who puts in place the will is the one who makes the choice around who the executor will be. It’s not a family vote. Simply disagreeing with the choice of an executor or believing that a person may be better fitted to that task, isn’t enough to have the appointment changed.

If there is an executor who is appointed, who is unwilling or unable to act, there may be a mechanism to appoint other family members as executor or what we call administrator, in that position if they have standing. Or if there is an executor who is appointed, but for whatever reason, they are not acting appropriately, then there may be a mechanism to remove them. But courts generally don’t replace executors just because of family tension. There must be evidence or serious concerns with their misconduct, or the ability to undertake that task.

Robyn: And if family members or beneficiaries believe that the executor isn’t doing their job properly, can they be challenged or removed?

Angela: They can. So, there is a mechanism to apply to the court to have an executor removed, but it’s not a matter of removing someone because you’re not happy with the decisions that are being made. You need to have, first of all standing to apply. It’s normally a beneficiary who would bring this form of application. But they really need to be able to demonstrate to the court that the executor is not fulfilling their roles.

So, whether that is they have unnecessarily delayed the administration, they have acted dishonestly or there is evidence of serious mismanagement. It’s quite a process to go through. You need to bring an application in court, you need to file an affidavit with evidence in support. You have the matter heard before the judge. There are many issues that do come up. It’s quite, in some instances the cost of the application, and what we usually try and do before this is look at well, what is the reason for the desire to remove that person and is it something that can be resolved?

Robyn: And what about when family members disagree over whether to sell the family home or how personal belongings are divided? How are these types of disputes usually resolved?

Angela: These disputes come up quite a bit. And how they’re resolved, what I normally do, is say well let’s go to the will first. What does the will say? At the end of the day, it is the function of the executor to administer the estate in accordance with the terms of the will.

So, if there are directions in there, for instance, around selling a home or specifically gifting it to a certain person or dividing items amongst family members, whether that’s a decision of an executor or whether it’s something that needs to be reached by agreement, we really want to look at what is the dispute over? Is there any function or methodology within the will that could potentially resolve that dispute.

And if not, how can we look at this to try and you know, calm some of the issues that arise, often it’s over items that may not have a hugely monetary value. It’s often more sentimental items like jewellery, household contents, that hold an emotional value.

I find that lawyers can often assist trying to calm some of the emotion. They’re people who are independent, who have experience in this sort of conflict. And trying to put in place some strategies to try and mediate some of the issues that can arise.

Robyn: So how do lawyers help families through these kinds of disagreements during the estate administration?

Angela: As I just mentioned, lawyers bring an element of independence. We’re not emotionally involved. We have experience in how the estate administration process works and we also have the knowledge around what the rights and responsibilities are of the executors or the beneficiaries. And sometimes it can be very helpful for someone who is independent to give that advice or to propose a potential strategy to try and reduce some of the conflict.

In many cases, when we’re acting for the executor, we can be a bit of a buffer between the executor and the beneficiaries, and we can try and temper some of those emotions by really just bringing it back to the facts, the legal issues and try and facilitate discussions to avoid conflict.

Often, we again go back to the will. We see, is there a mechanism in there to try and stop these sorts of disagreements, but what we really try and do is go okay, how can we resolve these disagreements or come to some form of arrangement where we’re avoiding having to go through the court process and incur costs and delay which at the end, no one walks away happy.

So, I guess what we’re trying to do is, you know provide that level of independence and advice so they can try and resolve those disputes.

Robyn: So, Angela, the old saying prevention is better than a cure. What’s your advice for families who want to avoid these issues before they arise?

Angela: I am a big believer in communication, having open discussions about what you want to happen before you pass away is in my view really important. Because a lot of people don’t have discussions within the family, or they might make comments to one child but not another. And often those discussions can be misinterpreted.

So, you’ve got people who are grieving the loss of someone they love, who are then confused around what the ultimate intention was.

Having open discussions is really important and so is having an up to date. It really is important that there is a will which documents who gets what, getting advice around what is the best way to structure your will.

Often people will come in to see an estate planning lawyer with an idea of what they want to do, but when they receive that advice, they might realise well, practically, that’s not going to work.

So that’s the benefit of getting legal advice and making sure that the will is drafted in a way that you’re not leaving your family with a potential dispute.

And probably one of the key choices is who is going to be the executor. You want someone who is fair, organised and ideally literal. So if there’s no one in the family, or any friends who can undertake that task, sometimes it might be more appropriate to appoint someone independent, like a lawyer or accountant.

Often, I find where there is someone who is independent, it can take away a level of the conflict because if you’ve got executors who don’t get along, you’re just going to end up with a dispute which really is what everyone wants to avoid when they pass away.

Robyn: And that wraps up our conversation today, whether it’s dealing with disagreements over a will, managing expectations among family members, or understanding your rights as a beneficiary or executor, it’s clear that getting good advice early can make all the difference.

Thanks Angela, for shedding light on what can be a really challenging and emotional part of the legal process.

Angela: It was my pleasure. Thanks for having me, Robyn.

Robyn: You’ve been listening to law talks here on 4CRB, which you can hear every Friday morning from 9 o’clock.