Executors are given significant authority and responsibility to administer a deceased estate in Victoria. They make decisions about gathering and protecting assets, dealing with debts and tax, communicating with beneficiaries and ultimately distributing the estate in accordance with the Will. Most of these decisions are made without controversy. From time to time, however, a beneficiary will disagree, sometimes strongly, with a particular decision.
This article explains when and how a beneficiary can raise concerns about an executor’s decisions in Victoria, the duties an executor owes, and the practical options that may be available. It is general information about Victorian succession law and is not a substitute for legal advice on a particular estate.
What Authority Does an Executor Have?
An executor is the person, or people, named in a Will to administer the estate of the deceased. Once the Supreme Court of Victoria grants probate, the executor’s authority is formally recognised, and third parties such as banks, share registries and land titles offices will deal with the executor on that basis.
Executors are given decision-making power because estate administration involves practical judgement. This includes when to sell assets, how to deal with creditors, how to manage tax obligations, how to respond to claims and when to make distributions. Beneficiaries are not generally entitled to direct each of those decisions. The role is entrusted to the executor.
The scope of the executor’s authority is informed by the terms of the Will, the Administration and Probate Act 1958 (Vic) and the Court’s supervisory jurisdiction.
Do Beneficiaries Have a Right to Challenge Executor Decisions?
Beneficiaries do have a legitimate interest in how an estate is administered, but their right to challenge particular decisions is more limited than it is sometimes assumed.
As a general guide:
- Mere disagreement with a commercial or judgement call, for example, the choice of selling agent or the timing of a sale, is rarely enough on its own to justify court intervention.
- Concerns may legitimately arise where a decision appears to be outside the executor’s authority, in breach of fiduciary duty or contrary to the terms of the Will.
- The Court is generally reluctant to second-guess an executor who has acted honestly, properly and within the scope of their authority.
Where genuine concerns arise about estate administration, however, the law provides meaningful avenues for beneficiaries to seek information, raise objections and, where necessary, apply to the Court for relief.
Common Reasons Beneficiaries Question Executor Decisions
In practice, the issues that lead beneficiaries to question executor decisions tend to be relatively consistent. They include:
- Lack of communication. Beneficiaries who hear nothing for months will often start to assume the worst, even where the estate is being administered properly.
- Delays in administration. Significant unexplained delay can lead to concern that the executor is not progressing the estate or is mismanaging it.
- Sale of estate assets. Disagreement about whether, when, how or to whom a property should be sold is one of the most common flashpoints in estate administration.
- Perceived conflicts of interest. Where the executor is also a beneficiary, a business partner or a relative with competing interests, even ordinary decisions can be viewed with suspicion.
- Concerns regarding fairness. Beneficiaries may feel that one party is being preferred over another in the distribution of assets, chattels or interim payments.
- Failure to provide information. Refusal to provide reasonable updates, inventories, valuations or estate accounts is often a trigger for formal complaint.
What Duties Does an Executor Owe?
An executor’s role is fiduciary in nature. Among other things, an executor must:
- Act in good faith and in the best interests of the estate and its beneficiaries as a whole
- Act for proper purposes, that is, to administer the estate in accordance with the Will and applicable law, not for the executor’s own collateral advantage
- Avoid disqualifying conflicts of interest and not profit from the role except as permitted by the Will or the law
- Exercise reasonable care, skill and diligence in the administration of the estate
- Keep proper records and be prepared to account for the administration when required
Decisions that appear to be in breach of these duties are usually the most fertile ground for beneficiary concern.
Can Beneficiaries Request Information?
Yes. While the position is more nuanced than “beneficiaries can demand everything”, beneficiaries who have a vested or contingent interest in an estate are generally entitled to certain information about its administration.
In practical terms, this often includes:
- Estate updates. Confirmation of the stage of administration, the steps taken and the work that remains.
- Communication. Reasonable responses to genuine queries from beneficiaries about the progress of the estate.
- Estate records. Including, in appropriate cases, an inventory of assets, key valuations and estate accounts.
- Practical expectations. Indicative timing for completion of major tasks, distributions and tax steps.
When Do Estate Disputes Arise?
Most estate disputes that escalate into formal proceedings begin in one of a small number of ways:
- Communication breakdowns. Silence, infrequent updates or a defensive tone from the executor often shifts a manageable concern into an entrenched dispute.
- Family conflict. Pre-existing tensions between family members frequently surface during estate administration, and can colour the way every decision is perceived.
- Disagreements about property sales. Decisions about whether to sell, who buys, the method of sale and the price are common flashpoints, particularly where one beneficiary wishes to retain the property.
- Concerns regarding estate management. Perceived favouritism, undisclosed conflicts of interest, missing records or unusual decisions about distribution often prompt beneficiaries to seek advice.
Where these issues are addressed early, usually through better communication, they often resolve without escalating. Where they are ignored, they tend to harden.
What Options May Be Available?
A beneficiary who is genuinely concerned about an executor’s conduct or decisions in Victoria generally has a graduated set of options. As a high-level guide, these include:
- Seeking information. A clear, written request for specific information, such as an inventory of assets, confirmation of probate, copies of valuations, or estate accounts, is usually the appropriate first step.
- Professional advice. An early consultation with a solicitor experienced in probate and estate matters can help a beneficiary understand their position, assess whether concerns are well founded and decide on next steps.
- Negotiated resolutions. Many disputes can be resolved through correspondence between solicitors, mediation or structured family discussions, without the need for Court proceedings.
- Court processes in appropriate cases. Where serious issues cannot be resolved by agreement, beneficiaries may consider applying to the Supreme Court of Victoria for orders requiring the executor to account, to provide information, to undo improper transactions or, in serious cases, to be removed and replaced.
Court applications carry real cost and risk and are usually a last resort.
Grounds for Challenging an Executor in Victoria
In Victoria, under section 34 of the Administration and Probate Act 1958 (Vic), a party with an interest in the deceased estate can apply to have an executor removed from the administration on any of the following grounds:
- They have been outside of Victoria for a period of two years or more
- They consent to being discharged from the role
- They have refused to act as executor or administrator
- They are incapable of acting as executor or administrator
- They are unfit to act as executor or administrator
The Supreme Court of Victoria has inherent power, and power under section 15 of the Administration and Probate Act 1958 (Vic), to pass over an executor, and appoint someone else to manage the estate. The Court will only remove or pass over an executor where there is evidence that they are unable to faithfully discharge their duties in the best interests of the beneficiaries.
Practical Tips for Beneficiaries
Where a beneficiary is concerned about an executor’s decisions, the following practical steps tend to lead to better outcomes:
- Be clear about what is being asked. Vague requests for “an update” are often less effective than specific requests for identifiable information.
- Put significant requests in writing and keep copies of correspondence.
- Distinguish between disagreement with a judgement call and genuine concerns about authority, conflict of interest or breach of duty.
- Avoid emotive or accusatory language. Measured communication is more likely to be taken seriously and is far easier to rely on later if a dispute escalates.
- Keep your own records of relevant events, communications and documents.
- Obtain legal advice early where concerns are substantial, rather than waiting until a decision has been implemented and is more difficult to undo.
- Consider the broader family relationships and the cost, financial and personal, of any escalation.
The Role of an Estate Administration Lawyer
An estate administration lawyer can assist both executors and beneficiaries navigate disputes that arise during the administration of a deceased estate. For executors, advice may focus on understanding fiduciary duties, responding appropriately to beneficiary requests and minimising the risk of personal liability for costs or damages.
For beneficiaries, an estate administration lawyer can assess whether concerns about the executor’s conduct are well founded, help draft formal requests for information, negotiate with the executor or their legal representatives and, where necessary, prepare and file an application in the Supreme Court of Victoria.
Early advice from an estate administration lawyer often resolves disputes at the communication stage, avoiding the need for costly and protracted litigation.
When a Probate Lawyer in Melbourne May Become Involved
A probate lawyer in Melbourne may become involved where disputes concern the validity of the Will, the grant of probate itself, or the proper administration of the estate following the grant.
Common scenarios include:
- Concerns that the executor has not applied for probate within a reasonable time
- Objections to the grant of probate on the basis of testamentary capacity, undue influence or improper execution
- Disputes about the interpretation of the Will’s terms
- Applications to remove or replace an executor for serious misconduct or persistent failure to act
In such matters, a probate lawyer in Melbourne can provide advice on the applicable legal tests, the evidence required and the most appropriate forum for resolution, whether through negotiation, mediation or Court proceedings.
Conclusion
Executors are given significant authority in Victoria for good reason, but that authority is not unlimited. Beneficiaries who have genuine concerns about how an estate is being administered are entitled to ask questions, to receive certain information and, where there is a proper basis, to seek the assistance of the Court. Most concerns are resolved at the communication stage. Very few need to be pursued to formal proceedings.
If you are an executor, beneficiary or family member with concerns about estate administration, early advice can help you understand your position and consider the options available. The experienced wills and estates team at Tonkin Legal Group provides practical legal advice regarding probate, estate administration, executor disputes and related succession law matters.
For matters requiring specialist assistance with estate accounts, asset transfers or complex administration tasks, our team can coordinate with an experienced estate administration lawyer to ensure all obligations are properly discharged.