Latest posts by Brian Herd (see all)

Can an Executor challenge a will? The short answer is yes and they often do. Read on.

When you make somebody the ‘Executor’ of your Will, you send a number of subliminal messages to them:

  1. You are the person/s I know and trust to perform this important role when I die;

And, as required by the law:

  1. Your job is to do what my Will says; and
  2. Your job is also to uphold or defend what it says even if it is challenged.

There is an understandable and prevailing bewilderment in the community about how it is that you can make a Will and yet the Courts can overturn it or change it. Indeed, this is happening more and more if you believe all the statistics about the number of challenges to Wills being filed in our courts. There is no doubt that it is a growth area in legal practice.

While there is a limited range of people who can challenge a Will, generally, they are an existing beneficiary in a Will who challenges the Will wanting more from the estate than what they were given. Alternatively, it could be someone who expected to be a beneficiary but missed out completely. Usually both types of challengers are adult children contesting their parent’s Will.

As well, the last surviving parent’s Will usually provides that all, or some, of the children are beneficiaries and all, or some, of the same children are the Executor/s of the Will. They get given two hats to wear in the Will. So, given the expectations of the parent in appointing their children as Executors (set out above) and the legal duty of those executors to uphold the terms of the Will, what happens if one of those executors wants to challenge their parent’s Will?

As indicated above, the answer is clear – they can. However, it is the implication of such a challenge on their role as an Executor that is even more interesting – can you be a Challenger and an Executor at the same time?

Common sense would tell you that that is, at best, uncomfortable and at worst, a raging conflict of interest. The law and common sense are not often on the same page but on this occasion they are. If an Executor ever found themselves in such a position, they would be well advised, if not required, to give up their Executor’s role in order to pursue their challenge.

In our next alert I will examine what it may mean to give up the role of an Executor and how a parent might be able to restrict or control any challenge to their Will through the intelligent appointment of Executors. Stay tuned.

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