Can an Executor Change a Will? (NSW)

An executor plays a crucial role in administering the estate of a deceased person. They are entrusted with carrying out a testator’s wishes in their will and ensuring the estate is distributed according to the law. Although an executor is empowered to act on behalf of the deceased estate, there are clear limits to their power. For instance, in New South Wales (NSW), an executor cannot change a validly executed will. However, there are legal mechanisms to allow for the adjustment of an estate’s distribution in specific circumstances, subject to court approval or agreement among the beneficiaries of the estate. This article looks at the role of executors, the limits of their authority, scenarios where a will might be modified or its terms adjusted, and the legal processes involved under the Succession Act 2006 and related legislation.

The executor’s role and authority

An executor is the legal representative of a deceased person’s estate. Executors owe a fiduciary duty to the estate and to its intended beneficiaries. This duty requires the executor to act with honesty, integrity, and loyalty. Any actions taken must prioritise the interests of the estate and adhere to the terms of the will. An executor’s primary responsibilities include:

Locating the will

An executor must take steps to ensure that they have the most recent valid will.

Identifying and valuing assets

Gathering the deceased’s assets and determining their value.

Applying for probate

Obtaining a grant of probate from the Supreme Court of NSW to confirm their authority, if this is required due to the nature of the estate.

Paying debts and taxes

Settling outstanding liabilities before distributing the estate.

Distributing the estate

Carrying out the testator’s wishes as expressed in the will. Negotiation with claimants and defending the will from spurious challenges and claims.

Does an executor have the power to change a will?

An executor’s authority comes from the will itself and succession law. Under this authority, they must act in the best interests of the estate and its beneficiaries, adhering strictly to the will’s terms. Importantly, the executor’s powers are limited by the content of the will and the law, they cannot override the testator’s instructions unless legally authorised to do so. The will reflects the deceased’s testamentary intentions, which must be respected. Any attempt by an executor to alter the terms of a will without proper legal justification would be considered a breach of their fiduciary duty and could lead to legal consequences, including their removal as executor.

However, while an executor cannot directly change a will, certain circumstances might require adjustments to the estate’s administration or distribution. These scenarios require legal processes or agreements rather than unilateral actions by the executor.

Rectification of a will

Under Section 27 of the Succession Act, the Supreme Court can rectify a will if it contains a clerical error or if the will does not reflect the testator’s intentions due to a drafting mistake. The executor or a beneficiary may apply for rectification, typically within 12 months of the grant of probate.

Administrative adjustments

An executor may need to make practical adjustments to administer the estate effectively. These actions must generally align with the will’s terms and the executor’s fiduciary duties. In some circumstances, the executor may have to sell assets that were bequeathed in the will to pay debts or taxes. Once the executor discharges these debts, they must otherwise follow the terms of the will as closely as possible.

Informal amendments

If the executor finds a document that purports to amend the will, the executor can apply to the Supreme Court of NSW under Section 8 of the Succession Act 2006 to recognise the informal document as a valid will or codicil. The court must be satisfied that the informal will reflects the deceased’s genuine testamentary intentions.

Family provision claims

Eligible people (such as spouses, children, and dependents) can file a family provision claim if they believe that a will provides inadequately for their proper maintenance and support. The executor is empowered to negotiate with a claimant and agree to alter the distribution of the will to settle the claim. If the executor considers that the claim is not reasonable, then they can defend the claim in court. If the court upholds the claim, it can order a redistribution of the estate, and the executor is responsible for implementing the court’s decision.

Agreements among beneficiaries

An executor can effectively ignore the terms of a will if all the beneficiaries sign a Deed of Family Arrangement (or deed of variation), which allows for an alternative distribution of the estate. For instance, one beneficiary might be financially secure and prefer that a bequest goes to a less well-off sibling. The executor facilitates the implementation of the agreement but cannot impose such changes without the agreement of the beneficiaries.

Executors acting outside their authority

If beneficiaries believe an executor has exceeded their authority, they may challenge the executor’s decisions in court. The Supreme Court has the power to:

• remove an executor for misconduct
• appoint a substitute executor
• reverse actions taken by the executor that are inconsistent with the will or the law

The court can even hold the executor personally liable for mismanagement of the estate.

In NSW, executors are strictly bound to carry out the terms of the will and cannot unilaterally change it. However, an executor can adjust the distribution of an estate through legal processes such as rectification, recognition of informal amendments, family provision claims, and agreements among beneficiaries. Executors must act within the bounds of the law and their fiduciary duties, ensuring the testator’s wishes are respected while navigating disputes and practical challenges. Contact Go To Court Lawyers on 1300 636 846 for legal advice about any wills and estates matter.