An interesting decision impacting on executors duties was handed down last week in the Queensland District Court, (McGill DCJ).
In Queensland, certain classes of people who feel they have not been adequately provided for in a will can give the executor notice within six months of the death of the will maker that they intend to make a claim. They have nine months from the date of death to commence proceedings, but there is also provision for them to apply to a court if they fall outside this timeline.
In this case, the executor and her lawyers were given notice of intention to make a claim within the correct time period and then followed a good deal of correspondence between the parties where the basis for the claim was outlined, and discussed. However, proceedings were not commenced within the nine-month period ,because the party in question believed a negotiated settlement was imminent.
Despite this, the executor distributed the estate just after the 9 months expired, and then, when an application was filed (albeit late) tried to have the application dismissed on the basis that the estate had already been distributed. This attempt to thwart the application was unsuccessful. More upsetting for the executor- she was joined to the action in her personal capacity, AND ordered to pay costs of the application personally when she lost.The judge was especially critical of the executors conduct, which he described as “disgraceful” and relying on “shabby tricks”.
So the moral of the story is – when acting as executor, there is no room for sharp practice.