You have been appointed executor, the testator has died and now
there's a Family Provision Act 1972 (WA)
(Family Provision Act) claim on foot and the other
beneficiaries want nothing to do with the application so you're
left "holding the baby". What do you do?
In this case, Mr Bassett-Scarfe, in his capacity as executor,
had to make a decision on whether or not he was going to oppose
Joseph Browne's Family Provision Act claim. Mr Browne
was the de facto partner of the late Ms Phillips. She died on 10
October 2013 and by her will dated 8 March 2012, left Mr Browne 10%
of her residuary estate which equated to approximately $34,000.
Mr Browne commenced his claim for further provision from Ms
Phillips' estate and all 20 other beneficiaries (none of which
received in excess of 10% of the estate) were named as defendants.
Only Mr Bassett-Scarfe entered an appearance, 5 defendants filed a
notice to abide by the court's decision and the others, while
they did not wish to file an appearance, expressed a desire for Mr
Browne's application to be opposed.
The matter did not settle at mediation and so Mr Bassett-Scarfe
sought the court's direction (as he was entitled to) under s 92
of the Trustees Act. An executor has a duty to do one of
two things when there is a Family Provision Act claim on
foot – either compromise (settle) a claim or contest it, and
seek to maintain the terms of the deceased's will.
Mr Bassett-Scarfe's question to the court was simple: Is it
appropriate that the executor oppose Mr Browne's claim?
Ordinarily in such applications, the executor should firstly
obtain a legal opinion. While there was no evidence of this before
the court, the Acting Master was satisfied on the basis that Mr
Bassett-Scarfe was a legal practitioner and had put into evidence a
copy of his letter to Mr Browne's lawyer which contained a
"...well-reasoned argument as to why he would be justified in
continuing to oppose the application" (see ). The Acting
Master also commented that obtaining an opinion of independent
counsel would have been a waste of estate funds given it was a
In considering the likely legal costs to be incurred relative to
the size of the estate and the consequence to the estate funds if a
less "cost effective" beneficiary defended the claim, the
court held that Mr Bassett-Scarfe was justified in continuing to
oppose Mr Browne's action and would be justified in engaging
independent counsel going forward. He was also entitled to the
costs of his application.
Provided Mr Bassett-Scarfe follows the direction of the court,
he will be protected from any claim by a beneficiary arising from
the action. In saying that, the Acting Master did not preclude Mr
Bassett-Scarfe from settling the matter if both he and independent
counsel were of the view that an offer of settlement was reasonable
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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