Australia: When co-executors go to war, will there be anything left of the estate? Which case won?

Last Updated: 21 January 2019
Article by Kurt Topper

The Facts: 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.

Case a - The case for the de facto spouse Case b - The case for the son
  • When we purchased the home unit, my partner promised me that it would always be my home. She regularly repeated this promise.
  • I made significant financial and non-financial contributions to the acquisition, maintenance and improvement of the property while my partner was alive.
  • Since she died, I have paid $48,000 of my own funds on the mortgage and other loans owing on the property.
  • My financial needs are greater than the needs of my former partner's sons. This includes the need for ongoing accommodation.
  • I am morally and legally entitled to and should receive sole ownership of the property which has been my home for many years. I have always remained hopeful that my former partner's sons would ultimately understand and recognise this.
  • The court should make a family provision order making me the sole owner of the property.
  • When my mother's former partner says "we purchased the home unit", he is being untruthful. He was never an owner of the property.
  • My mother never intended to leave the property solely to him. Her will makes this very clear.
  • My mother's former partner refused to sell the house when we found a buyer, refused to sell us his half share, and refused to buy our half share from us. While maintaining a pretense of continuing negotiations, he married and had his new wife and her children move into the house without informing me. Clearly, he had no intention of allowing the property to be sold.
  • He has lived in the house rent-free for seven years. In this time the estate could have earned over $100,000 if it had been rented to commercial tenants.
  • There has been prejudice to me and my brother in having the final distribution from our mother's will delayed. The court should remove my mother's former partner as co-executor and order that he vacate the house, so it can be sold without further delay.

So, which case won?
Cast your judgment below to find out

Vote case A – the case for the de facto spouse
Vote case B – the case for the son

Kurt Topper
Will disputes
Stacks Heard McEwan

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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