When co-executors go to war, will there be anything left of the estate? Which case won?
Woman appoints de facto partner and son as co-executors of estate
In April 2011 a woman died at 60 years of age. She was survived by her two adult children and her de facto spouse.
The woman and the de facto spouse had lived together as a couple since about 1996 until her death, a period of about 15 years. They lived together on the NSW coast in a home unit which was owned by the woman.
The property was the woman’s only asset of any real value, which was estimated at $245,000 at her death.
The woman made her last will in 1998, appointing one of her sons and her de facto spouse as co-executors. The will left half the value of her home to her de facto spouse and the other half to her sons.
Probate of the will was granted to the son and the de facto spouse as co-executors.
Protracted negotiations between co-executors fail to produce results
Over six and a half years had elapsed since the woman’s death and the woman’s estate had yet to be finalised.
Negotiations between the son and the de facto spouse as to the sale of the coastal property or its purchase by the de facto spouse had failed.
The de facto spouse continued to reside at the property. In 2016 he married and his new wife and her children subsequently moved in to the house and continued to live there.
The property remained registered in the name of the deceased woman and could not be sold or otherwise dealt with without both executors reaching agreement.
Son commences legal proceedings to remove mother’s de facto as co-executor
The son commenced proceedings in the Supreme Court of NSW in November 2017, claiming the de facto spouse had prevented the woman’s estate from being finalised and had wrongfully interfered with the estate’s property rights by continuing to reside there without entitlement to do so.
He asked the court to remove the de facto spouse as co-executor and to order him to vacate the coastal property so that it could be sold.
De facto files cross-claim seeking family provision order
The de facto spouse filed a cross-claim in the court contesting the will, seeking a family provision order that he should receive the whole of the coastal property, because he had been the de facto spouse and the property had become his home over the years.