NSW Dispute between co executors

Discussion in 'Wills and Estate Planning Law Forum' started by Amanda Wilson, 23 March 2019.

  1. Amanda Wilson

    Amanda Wilson Member

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    When my father passed away, my cousin and myself were named as executors of his will and also as beneficiaries, alongside his brother and my 2 young daughters when they turn 21.
    The three adults are to receive a set amount of money and my daughters, the residual.

    When he passed away, his sister (my aunt and cousins mother) was contacted by the police as his next of kin and she performed all the actions of the executor without advising us that we were the executors (she had the only most recent copy of the will) and as the copy I had prior to the most recent had her as the executor I did not question it. When asked, she told me the version I had was not the most recent but again did not inform me I was the executor. She arranged the forensic cleaning of his unit, the funeral and contacted the few debtors of his estate, other than this it is a very simple estate.

    2 months following his death we were advised that my cousin and I were in fact the executors.
    At this point my aunt has requested payment for the work that she performed, asking for $20,000.
    I believe this to be an unreasonable amount of money given the simplicity of the estate and the size. I offered to gift her $10,000 from the estate but my cousin as co executor disagrees and states that we should give her $20,000. At this point we are not in agreement.

    I plan to talk to the solicitor about this on Monday, but what is normally the way this works? Both of us are conflicted as it is his mother that he wants to give the money to and my daughters who the money will be taken away from. I don’t want to go to court over this, but I also don’t want to just give in to the detriment of my daughters future.
     
  2. Rob Legat - SBPL

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    I don’t practise in NSW and I’m not familiar with the estate laws down there, so this is more of a common sense opinion.

    Reimbursement of valid expenses is generally a given. Compensation for the tasks performed is a different matter.

    If an executor is a family member, and especially if they are a beneficiary, I don’t believe they should receive payment for their time - unless the will specifically allows it. If the beneficiaries want to elect to give some form of gratuity out of the estate, that should be up to them.

    If the testator appointed a professional as their executor, then there is an inclination that the role will be paid.

    All that said your aunt was not the executor, not approved nor appointed to perform the work, gave no ability to the estate or the beneficiaries to negotiate the fees, knew who the rightful executors were and hid that fact from them, and by all accounts sounds like she is severely overcharging. She not only shouldn’t be paid, she should offer up an apology to beneficiaries and count herself lucky if a fraud complaint isn’t made against her.
     
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  3. Amanda Wilson

    Amanda Wilson Member

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    Thank you so much for your response.

    If anything, I am glad alone to hear that the amount is unreasonable, and I knew in my mind that what she had done was wrong but I had never formally considered levelling a charge of fraud against her. I probably still won't do that but I will discuss that side of the matter with the solicitor.
     
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