The role of the executors of an estate is to identify the assets of the deceased’s estate, and distribute them in accordance with the Will. This task can be complicated if the deceased’s affairs were managed by an attorney, under an Enduring Power of Attorney (EPOA) instrument.
The specific rights granted to an attorney are outlined in the EPOA instrument, and can include the management of bank accounts and sale of assets. When it comes to an executors duty to administer the estate, unauthorised and extensive use of the attorney’s power can complicate matters.
For example, a specific asset may have been listed as a gift to a beneficiary in the deceased’s Will, but was disposed of by the attorney prior the deceased’s death. In this instance, the gift may fail, or the beneficiary is entitled to the proceeds of the sale. The outcome varies depending on if the disposal was unauthorised, and when the EPOA was made.
Executors are held liable should they fail to enquire into and recover sales authorised by the attorney which were illegitimate (Bird v Bird [2013] NSWCA 262). For this reason, it recommended for executors to enquire into disposals and financial actions undertaken by the attorney. This will clarify any suspicious transactions and initiate the recovery of assets belonging to the estate. Executors ought to cross-reference the attorney’s actions with their powers granted in the EPOA instrument. If the attorney misused the EPOA, the estate has a cause of action.
Importantly, the attorney has a duty to maintain and produce accounts when requested by the executor. An order can be sought from the Supreme Court should the attorney fail to comply with the executor’s requests.
If you find yourself in a situation where you are the executor of a Will and there was an active EPOA before the deceased’s death, or you’re a beneficiary in the Will and are concerned about state of the estate’s assets, we strongly advise you to seek legal counsel.
At Northern Beaches Lawyers, we have over 25 years in Succession Law and Estate Planning. We have the necessary experience to navigate these complex matters, and endeavour to provide the best outcome for our clients. Call us today for a chat.
