Can an Executor Change a Will in NSW?

An executor cannot unilaterally change the terms of a Will in NSW.

However, there are circumstances where the executor may be required to distribute the estate in a manner which is different to the terms of the Will, such as where the following arise:

• Deed of Family Arrangement: Specific beneficiaries of an estate can reach agreement amongst themselves, and with the executor, to change the distribution of the estate between them. Such changes are typically formalised when the beneficiaries sign a Deed of Family Arrangement, which may redistribute the assets differently if all involved parties agree. In these cases, the executor will be required to distribute the estate in a manner different to the terms of the Will.
• Intestacy and Ambiguity: If a beneficiary predeceases the testator or clauses in the Will are vague, the executor may need to apply to the court of construction and ask the Supreme Court to assist with interpretation of the Will, which could alter how assets are distributed.
• Legal Claims: Where a person brings a family provision claim on the basis that the will does not adequately provide for them, the executor can negotiate with the named beneficiaries to settle the claim, potentially altering the Will’s original terms. Agreements of this nature are often formalised through a Deed of Family Arrangement.
• Estate’s Debts: An executor may need to sell assets or adjust distributions to cover outstanding debts and liabilities, which can change the practical effect of the Will’s instructions.

The Process of Probate and Its Impact on the Will

Probate is the legal process where a court confirms the validity of a Will and gives the executor authority to administer the estate according to its terms. The executor is then tasked with carrying out the wishes of the deceased, which include distribution of the assets and estate according to the terms of the Will.

Executor’s Duties During Probate

During probate, the executor has several duties including identifying and securing the estate’s assets, paying the estate’s debts and liabilities, and distributing the estate in accordance with the terms of the Will. The executor has a fiduciary duty to act in the best interests of the estate and the beneficiaries. Any failure to comply with these duties may constitute a breach of the executor’s fiduciary duty. In New South Wales, an executor’s conduct is governed by the Probate and Administration Act 1898 and the Trustee Act 1925 (NSW). Non-compliance may lead to legal consequences, including being removed as executor and having to repay the estate for any unlawful distributions.

Limitations on Executor’s Powers Post-Probate

While the executor has a duty to administer and distribute the estate’s assets, their powers are not without limits. They cannot change the Will or make changes to or ignore its provisions, without the consent of the beneficiaries affected by the change. An executor cannot remove a beneficiary. An executor cannot benefit personally from their role as executor beyond receiving any express gifts made in the will, receiving reasonable professional fees if permitted by the Will, and receiving commission if the court allows.

Protecting the Will’s Integrity Through Probate

Probate plays a critical role in protecting the integrity of the Will and the deceased’s testamentary wishes. Once probate is granted, the executor will be required to comply with the deceased’s wishes.

Executor vs. Beneficiary: Rights and Limitations

The relationship between an executor and beneficiaries is governed by a complex set of rights and obligations. Whilst an executor has the authority to make certain decisions, the executor must follow the terms of the Will. Beneficiaries have the right to expect that the estate will be managed competently and fairly and may take action against the executor personally if they have suffered a loss due to the executor’s actions.

If beneficiaries believe the executor is not fulfilling their duties, the beneficiary may request the intervention of the court, which may involve an inspection of the estate accounts or in more serious cases, revoking the grant of probate completely.

Situations Where an Executor of the Estate May Seem to Change the Terms of a Will

An executor cannot change the terms of a Will without the consent of the beneficiaries impacted by the change. However, there are situations where it may appear that an executor of a deceased estate is altering the effect of the will. These include when the executor distributes the estate in accordance with a Deed of Family Arrangement or Deed of Variation, where the executor distributes an estate in accordance with a determination of the court of construction, or where the executor is required to sell assets which are the subject of a specific gift to pay for the estate’s debts.

Legal Actions When an Executor Oversteps Their Role

If an executor commits a breach of their duty, beneficiaries of the estate have legal recourse in relation to executor misconduct, and the executor may be held personally liable for mismanagement of the estate. This might include applying to the Supreme Court of NSW to review whether an executor has committed a breach or whether there are grounds to remove the executor.

Beneficiaries can also seek damages if the executor’s misconduct results in financial losses to the estate. Such legal actions ensure that the estate is administered according to the terms set by the deceased and protects the rights of the beneficiaries.

Need Guidance on Executor Duties or Contesting a Will?

If you’re facing challenges with executor duties, need assistance carrying out the terms of a Will, or would like to contest the Will of a deceased person, you should seek legal advice at the earliest opportunity.

Empower Wills and Estate Lawyers in NSW are here to assist. Call us at 1300 414 844 for expert legal advice tailored to your situation. We offer flexible fee structures, including “no win, no fee” agreements, to ensure you receive the support you need to navigate these complex issues efficiently.

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Disclaimer: the information in this article is general information only. It does not constitute legal advice and should not be relied upon as legal advice. It may contain information or links to sources which are no longer current. If you have a question or legal issue, we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts, circumstances, needs and objectives.