NSW Does a will arrangement remain valid if a stated condition of agreement was not fulfilled?

[RAC]

I am seeking opinions regarding the significance of a condition or understanding surrounding the execution of a will, and whether there may still be any relevant legal options given the time that has passed.

My mother passed away almost five years ago. Her will provided that my sister would receive a one-quarter share of the family home, with the remaining portion distributed among the other children.

The issue is not the validity of the will itself, but that the arrangement proceeded on an understanding that all the brothers agreed, when that precondition was not fulfilled. I did not agree, and I was not aware of the arrangement until after renovations to the property had been completed.”

In an email sent in January 2021, the executor (my brother) wrote:
“Mum liked the idea, but [name] said she would not proceed unless all the brothers agreed. Mum did the checking, and I presume she included you. I do not remember her excluding you. Mum said that everyone had agreed and no-one challenged it at the time. It does not affect the validity of the agreement.”

I did not agree, and I was not aware of the arrangement until after renovations to the property had been completed.

There appears to be no written agreement regarding this condition beyond the wording of the will itself and the later correspondence.


My questions are:
1. What legal significance, if any, would a condition such as “all the brothers agree” have if the will proceeded on the understanding that agreement existed when at least one beneficiary disputes that?

2. Is this more likely to be treated as:

• an issue relating to the validity of an agreement,​
• the administration of the estate,​
• or simply irrelevant if the will itself was validly executed?​

3. Given that almost five years have now passed, are there circumstances in which a court would still consider concerns of this kind, particularly where attempts were made to resolve matters informally within the family first?

I understand no one here can provide formal legal advice, but I would appreciate general guidance regarding the legal significance of these issues and whether the elapsed time effectively closes off any practical options.

 

[perjury]

What did the will say?
Do other beneficiaries agree there was a verbal "condition precedent"?

 

[RAC]

I am seeking opinions regarding the significance of a condition or understanding surrounding the execution of a will, and whether there may still be any relevant legal options given the time that has passed.

My mother passed away almost five years ago. Her will provided that my sister would receive a one-quarter share of the family home, with the remaining portion distributed among the other children.

The issue is not the validity of the will itself, but that the arrangement proceeded on an understanding that all the brothers agreed, when that precondition was not fulfilled. I did not agree, and I was not aware of the arrangement until after renovations to the property had been completed.”

In an email sent in January 2021, the executor (my brother) wrote:
“Mum liked the idea, but [name] said she would not proceed unless all the brothers agreed. Mum did the checking, and I presume she included you. I do not remember her excluding you. Mum said that everyone had agreed and no-one challenged it at the time. It does not affect the validity of the agreement.”

I did not agree, and I was not aware of the arrangement until after renovations to the property had been completed.

There appears to be no written agreement regarding this condition beyond the wording of the will itself and the later correspondence.


My questions are:
1. What legal significance, if any, would a condition such as “all the brothers agree” have if the will proceeded on the understanding that agreement existed when at least one beneficiary disputes that?

2. Is this more likely to be treated as:

• an issue relating to the validity of an agreement,​
• the administration of the estate,​
• or simply irrelevant if the will itself was validly executed?​

3. Given that almost five years have now passed, are there circumstances in which a court would still consider concerns of this kind, particularly where attempts were made to resolve matters informally within the family first?

I understand no one here can provide formal legal advice, but I would appreciate general guidance regarding the legal significance of these issues and whether the elapsed time effectively closes off any practical options.

@prejury, Thank you for the reply.

The relevant clause states:
“I Give to my daughter [Name] a one quarter (¼) share of my said residence 2 Cary Street, Baulkham Hills provided that my daughter's entitlement pursuant to this clause shall extend only to a one-quarter (¼) share in the house erected on a single parcel of land...”
On its face, the clause itself does not mention any requirement that all the brothers agree.

The reason I raised the issue is that the executor later wrote to me:
“Mum liked the idea, but [name] said she would not proceed unless all the brothers agreed. Mum did the checking, and I presume she included you. I do not remember her excluding you. Mum said that everyone had agreed and no-one challenged it at the time. It does not affect the validity of the agreement.”
I did not agree, and I was not aware of the arrangement until after renovations had already been completed.

Because I live overseas, I do not know with certainty what all the beneficiaries understood at the time. However, I am confident that at least one specific beneficiary would not have accepted the arrangement.

My uncertainty is really about the legal significance, if any, of the executor acknowledging an understanding that agreement from all the brothers was required, when at least one beneficiary states that agreement was neither sought nor obtained.

 

[perjury]

I don't know the value of the will, but if you challenge it (probate in solemn form) then a judge will decide if that was or was not the testatrix's intention.
Cost for that come out of the estate.
If this agreement was written or recorded elsewhere, it will be given weight, but as an assertion by the executor, the weight is not going to be given, and the will would be interpreted on its terms.
I would say the Court would find the will valid as written.
Why is this being brought up five years after your mother's passing?

 

[RAC]

I am seeking opinions regarding the significance of a condition or understanding surrounding the execution of a will, and whether there may still be any relevant legal options given the time that has passed.

My mother passed away almost five years ago. Her will provided that my sister would receive a one-quarter share of the family home, with the remaining portion distributed among the other children.

The issue is not the validity of the will itself, but that the arrangement proceeded on an understanding that all the brothers agreed, when that precondition was not fulfilled. I did not agree, and I was not aware of the arrangement until after renovations to the property had been completed.”

In an email sent in January 2021, the executor (my brother) wrote:
“Mum liked the idea, but [name] said she would not proceed unless all the brothers agreed. Mum did the checking, and I presume she included you. I do not remember her excluding you. Mum said that everyone had agreed and no-one challenged it at the time. It does not affect the validity of the agreement.”

I did not agree, and I was not aware of the arrangement until after renovations to the property had been completed.

There appears to be no written agreement regarding this condition beyond the wording of the will itself and the later correspondence.


My questions are:
1. What legal significance, if any, would a condition such as “all the brothers agree” have if the will proceeded on the understanding that agreement existed when at least one beneficiary disputes that?

2. Is this more likely to be treated as:

• an issue relating to the validity of an agreement,​
• the administration of the estate,​
• or simply irrelevant if the will itself was validly executed?​

3. Given that almost five years have now passed, are there circumstances in which a court would still consider concerns of this kind, particularly where attempts were made to resolve matters informally within the family first?

I understand no one here can provide formal legal advice, but I would appreciate general guidance regarding the legal significance of these issues and whether the elapsed time effectively closes off any practical options.

Thank you for the reply.

The relevant clause states:
“I Give to my daughter [Name] a one quarter (¼) share of my said residence 2 Cary Street, Baulkham Hills provided that my daughter's entitlement pursuant to this clause shall extend only to a one-quarter (¼) share in the house erected on a single parcel of land...”
On its face, the clause itself does not mention any requirement that all the brothers agree.

The reason I raised the issue is that the executor later wrote to me:

“Mum liked the idea, but [name] said she would not proceed unless all the brothers agreed. Mum did the checking, and I presume she included you. I do not remember her excluding you. Mum said that everyone had agreed and no-one challenged it at the time. It does not affect the validity of the agreement.”

I did not agree, and I was not aware of the arrangement until after renovations had already been completed.

Because I live overseas, I do not know with certainty what all the beneficiaries understood at the time. However, I am confident that at least one specific beneficiary would not have accepted the arrangement.

My uncertainty is really about the legal significance, if any, of the executor acknowledging an understanding that agreement from all the brothers was required, when at least one beneficiary states that agreement was neither sought nor obtained.

I am seeking opinions regarding the significance of a condition or understanding surrounding the execution of a will, and whether there may still be any relevant legal options given the time that has passed.

My mother passed away almost five years ago. Her will provided that my sister would receive a one-quarter share of the family home, with the remaining portion distributed among the other children.

The issue is not the validity of the will itself, but that the arrangement proceeded on an understanding that all the brothers agreed, when that precondition was not fulfilled. I did not agree, and I was not aware of the arrangement until after renovations to the property had been completed.”

In an email sent in January 2021, the executor (my brother) wrote:
“Mum liked the idea, but [name] said she would not proceed unless all the brothers agreed. Mum did the checking, and I presume she included you. I do not remember her excluding you. Mum said that everyone had agreed and no-one challenged it at the time. It does not affect the validity of the agreement.”

I did not agree, and I was not aware of the arrangement until after renovations to the property had been completed.

There appears to be no written agreement regarding this condition beyond the wording of the will itself and the later correspondence.


My questions are:
1. What legal significance, if any, would a condition such as “all the brothers agree” have if the will proceeded on the understanding that agreement existed when at least one beneficiary disputes that?

2. Is this more likely to be treated as:

• an issue relating to the validity of an agreement,​
• the administration of the estate,​
• or simply irrelevant if the will itself was validly executed?​

3. Given that almost five years have now passed, are there circumstances in which a court would still consider concerns of this kind, particularly where attempts were made to resolve matters informally within the family first?

I understand no one here can provide formal legal advice, but I would appreciate general guidance regarding the legal significance of these issues and whether the elapsed time effectively closes off any practical options.

I don't know the value of the will, but if you challenge it (probate in solemn form) then a judge will decide if that was or was not the testatrix's intention.
Cost for that come out of the estate.
If this agreement was written or recorded elsewhere, it will be given weight, but as an assertion by the executor, the weight is not going to be given, and the will would be interpreted on its terms.
I would say the Court would find the will valid as written.
Why is this being brought up five years after your mother's passing?

Because the trustee continues to remind me how the family does not meet together as they used to, and one brother refuses any contact. He managed it poorly. I would like to hear no more of it, but he insists.

 

[perjury]

Trustee?
Court appointed?

The property has not been distributed because....?
Your reply is somewhat cryptic.

If the brother who managed the property trust poorly (as executor) now refuses contanct (having been replaced?), then what is the actual legal problem?
You mantioned renovation of the property (fors sale?)
You do not consent to distribution with 1/4 going to your sister (per alleged verbal agreement), but that is in fact the written will.

In fact the executor would have had to distribute the property regardless of its state unless the will provided for renovations.

It seems to me the statutory duty to distribute overrides the discretion to enhance the value, even if all beneficiaries agree to it.