What is the Role of an Executor in a Wills Variation Act Claim?

If you're an executor and the estate you represent is subject to litigation (i.e. being challenged), read about your role here.

Executor working on an estate

In other words, what role does an estate’s executor play during estate litigation?

The Wills Variation Act allows courts to change a will so that dependents of the deceased are adequately and properly provided for financially.  The Act helps to ensure that all of the deceased’s legal and moral obligations to dependents are met in the dispensation of their estate.  Judges use their discretion to carefully balance this with honouring the wishes of the deceased as they are set out in their will.

An estate’s executor or administrator is in a unique position when there is a claim against the estate using the Wills Variation Act.  As executor, you would have to attend court to provide information and the proceedings influence your work, however, you are generally advised to remain neutral as to the outcome of the case.

Can an executor continue managing the estate once a Wills Variation Act claim has been made against it?

Even once notified that there is a pending Wills Variation Act claim against an estate, the executor or estate administrator can continue some of the work of managing it.  They can pay debts and taxes that are due, for example, since the outcome of the case would likely have no impact on their payment.  However, the executor should usually not pay out lump sums or periodic payments to beneficiaries without a court order.  The amount owed to beneficiaries may change based on the Wills Variation Act case, so paying anything while the case is still in court would complicate matters considerably.

What happens if an executor distributes the estate before a Wills Variation Act claim is made?

If an executor or administrator makes payments from the estate to beneficiaries either before a claim using the Wills Variation Act is made or while the court case is being heard, then they may be personally liable for any estate money that is lost due to their actions.

How can an executor avoid liability?

The simplest way for an executor or administrator to avoid liability is to wait to make payments to beneficiaries until six months after the grant of probate.  The window of time available to make a claim on an estate using the Wills Variation Act is from the date probate is granted until six months later.  Once the six months is up, nobody is allowed to make any more claims.

Alternatively, if all the possible beneficiaries that are allowed to make a claim using the Wills Variation Act (ie spouse and all the deceased’s children) agree and are not intending to make any claims, then payments from the estate to them could start earlier than six months after the grant of probate.

What do executors have to do in court when there’s a Wills Variation Act claim?

Executors and administrators will have to provide all relevant will and financial information that they have to the court for consideration during a Wills Variation Act case.  Their job isn’t to argue for one side or the other, but to give the judge the information needed to make a proper assessment.

What if an executor wants to make a Wills Variation Act claim on the estate?

If an executor or administrator wanted to make a claim on the estate for which they’re responsible using the Wills Variation Act, then they would first have to resign as executor or administrator.  It would be a conflict of interest to be both the personal representative for the estate and a claimant against it at the same time.

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