What is the role of the executor in a Wills Variation Action?
- The primary duty of an executor is to preserve the assets of the estate, pay the debts and distribute the balance to the beneficiaries as per the will, or in accordance with an order under the Wills Variation Act
- The executor should not pick sides between the beneficiaries and use estate funds to finance litigation on their behalf under the Wills Variation Act
- The executor must remain impartial appearing only at Trial if required to deliver the Probate and financial documents.
In the Ketcham case the testator was estranged from his three children and disinherited them. His will directed his executor to take an active role in defending his any Wills Variation Act claims and to use the estate assets to defend any claims, even if it depleted the estate entirely.
The children sued for a variation of the will. The executor applied to the court for directions as to what he could do. The Judge ruled that the executor was limited to taking a passive, neutral role and that the active defence clause in the will was void.
Read the case: Ketcham v. Walton