Robert Nash has been admitted to legal practice since 1987. He has practised as an independent barrister for 18 years at Francis Burt Chambers. He has a broad practice with emphasis on commercial disputes, deceased estates, trusts, real property, statutory and white collar crime, and military discipline law.
Legalwise Seminars interviewed Robert about the key challenges and opportunities in Estate Administration today. Read his responses below and hear more from Robert at his Estate Administration seminar.
Can you tell us about your practice and what your day-to-day work looks like?
Being a barrister, my day-to-day work involves either being in court or in chambers conferring with solicitors, settling documents such as pleadings and affidavits, preparing advices and opinions, and drafting written submissions and other court-related documents.
What types of matters interest you the most?
Disputes relating to estates, administration and succession; property law; commercial matters generally; inquiries; military discipline, and criminal matters.
What key trends and developments in Wills and Estates are you observing?
There is an increasing tendency to challenge the validity of wills, leading to more solemn form proceedings being issued. There also appears to be a growing trend of challenging executors and administrators in respect of the performance of their duties in administering deceased estates. This, in turn, is leading to more executors and administrators seeking to protect themselves by seeking Beddoe orders and court directions under Section 92 of the Trustees Act 1962 (WA).
Your seminar is about “Estate Administration: When the Executor/Administrator is not doing the right thing”. Why does this issue continue to be such a significant or difficult area?
I can only answer this question from what I see as a barrister, which usually means things have become so bad that the parties have commenced court proceedings. It seems to me that there are three common reasons:
First, it is often the case that problems arise because there is a lack of communication and accountability on the part of the executor. Giving the beneficiaries the silent treatment and keeping them in the dark as to how the administration is going, is often the cause of problems.
"From my observations, a good executor is someone who is well-organised, methodical, understands finances and accounting, and is a good and open communicator."
Secondly, the role of an estate executor or administrator can be extremely difficult, especially when estate beneficiaries are demanding or being unreasonable. Sometimes an executor doing his or her best, can simply become overwhelmed and not know how to move forward.
Thirdly, there will always be a proportion of people who take on executorial duties who are not suitable for it, but do it because the testator has appointed them. In these types of cases, it is not uncommon to see cases of long delays in getting in and administering the estate or, a failure to keep proper accounts and records of how the estate has been dealt with.
From my observations, a good executor is someone who is well-organised, methodical, understands finances and accounting, and is a good and open communicator.
What is one mistake you see practitioners make when dealing with a difficult Executor/Administrator who is not fulfilling their obligations?
Practitioners who try to defend the indefensible or, play hard ball in an attempt to fend off legitimate complaints, rather than try to quell and resolve estate issues quickly, usually do their clients a disservice.
What is one piece of advice you would give to practitioners who wish to remove an Executor/Administrator?
It depends on why you are trying to remove the executor or administrator. The first step should usually be to require them to pass their accounts. That process can often resolve or clarify many of the issues relatively quickly. If it is still necessary to remove the executor or administrator after that, the grounds for doing so will probably have become more clear.
Would you like to learn more from Robert? Attend his Estate Administration seminar on Tuesday, June 19, 2018 in the Parmelia Hilton, Perth.