Can an Executor challenge a Will (Part 2)

Can an Executor challenge a Will (Part 2)

Can an Executor challenge a Will? In the previous article on this subject, I discussed the ability of an Executor to challenge the very Will for which they have been appointed the Executor when their role it is to uphold and defend the terms of your Will against any challenge.

In this article I want to address what you can do to potentially limit the ability of an Executor to challenge your Will.

It is particularly relevant where you operate a Family Trust. There are over 600,000 Family Trusts in Australia. They have lots going for them when it comes to asset protection and tax minimisation.

If you have one of them, it is important to understand what happens to your Family Trust when you die:

  • Your Family Trust does not die with you. It carries on and can last for up to 80 years after you created it
  • Many Family Trusts have significant assets but you cannot pass them on to anyone in your Will
  • The most significant issue for you however, is who will control that Family Trust after you die
  • On the surface, it is the Trustee who normally controls the daily operations of the Family Trust but, in reality, it is the little known person usually called the Appointor – the person who can hire and fire the Trustee of the Family Trust. They are the real controller of the Family Trust and most Family Trusts have an Appointor
  • As the Appointor, almost invariably, is the mum or dad in the family, what happens when that mum or dad dies?
  • Most Family Trust deeds say that the Executor of the persons Will becomes the new Appointor of the Family Trust
  • That makes the position of Executor in your Will a crucial appointment because, in reality, not only are they the Executor of your Will but, because of that position, they also become the Appointer or controller of your Family Trust
  • They can then change the Trustee, appoint themselves as Trustee and distribute all the assets of the Trust to themselves if they are a beneficiary as they usually are
  • Trust me – it has happened

In the context of an Executor challenging your Will, you might be able to see where this story is going. If an Executor of your Will is considering a challenge to your Will, if they got some good legal advice, they could have some significant second thoughts when they realise that:

  • To challenge your Will, would normally require them to resign as an Executor
  • If they did so, they would no longer be the Appointor or controller of your Family Trust.

Those factors would certainly make them sit back and think about the prudence of challenging your Will.

Best advice I can give is that, when planning how you want to distribute your assets when you die and who you want to appoint as your Executor in your Will, give some equally serious consideration to the fate of your family trust.

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Authored by: Brian Herd

Brian is a partner in the firm and has been a lawyer since 1983. He is recognised as one of Australia’s leading experts in the areas of elder law, retirement, disability and aged care. Brian has extensive experience in life planning for older people and the legal issues impacting on them including making Wills, administering estates, disputes over Wills, superannuation, social security, retirement villages and aged care, incapacity, the Guardianship Regime, the loss of a spouse or the ‘suddenly single syndrome’, planning for disabled children, elder abuse, enduring powers of attorney, advance health directives, family agreements and disputes and mediation. His expertise also extends to the structuring of business affairs and advising on the impact of the transfer of interests in family businesses including trusts and family companies. As a passionate believer in the crucial role of charitable and community organisations, he also spends a significant amount of his time advising the not for profit and community sectors on Board governance, restructuring and constitutional review, mergers and acquisitions, legal compliance and risk management especially in the aged care, retirement and disability sectors. Brian is a popular presenter in public forums on elder law issues and is also regularly invited to address the changing legal dynamics and needs of the aged care and disability sectors at industry conferences. In 2014, for the second year in a row, Brian was named one of Australia’s best lawyers in Retirement Villages and Senior Living Law. Qualifications, Memberships and Other Contributions: •Bachelor of Arts – University of Queensland •Bachelor of Laws (Hons) – University of Queensland •Deputy Chair – Queensland Law Society’s Elder Law Committee •Former part time member – Queensland Law Reform Commission •International member – National Academy of Elder Law Attorneys of America •Member – Queensland Law Society •Approved Facilitator for Corporate Governance – Aged Care Standards and Accreditation Agency •Member – QPAC Choir •Adjunct Lecturer – Griffith University

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