Rights As The Beneficiary of a Will

Being named as an heir in a loved one’s estate comes with certain rights of being the beneficiary of a will.

Being named a beneficiary in a will usually comes at a time of stress and grief, and people often feel they are being kept in the dark when it comes to the administering of the estate.

While beneficiaries may feel like they are receiving little communication from the executor, this is generally due to the large, timely and often complicated process of executing the will.

In rare cases, however, the estate may be mismanaged, either through deliberate or negligent actions on behalf of the executor.

It is important to know your rights as a beneficiary of a will to ensure you receive clear communication, are transferred your fair entitlement, and to avoid any unnecessary tension between yourself and the executor.

Who is Considered a Beneficiary of a Will?

A beneficiary is any person who is named in a will to receive all or part of the deceased’s estate.

Beneficiaries of a will have certain rights which must be upheld under NSW law.

Rights as a Beneficiary of a Will in NSW

  • If you are named as a beneficiary of a will in NSW, you have the following rights:
  • All beneficiaries have the right to be informed that the deceased left a valid will, and they have been named as a beneficiary. They also have the right to know the nature and extent of their entitlement from the estate and a suggested time frame in which they can expect to receive their share.
  • While the executor is not legally required to provide you with a copy of the will, you do have the right to request a copy if you would like. Keep in mind this will usually come with some administrative costs.
  • To be notified of any liabilities that attach to your entitlement from the estate. This may include costs such as taxes and property transfer fees.
  • To be informed of any legal proceedings against the estate, which may potentially affect your entitlements. This will usually present as a challenge or contest to the will from someone who believes they were unfairly provided for in the will-making process.
  • To be informed of any legal proceedings against the deceased, which are set to continue despite the deceased’s passing.
  • To receive your entitlement within 12 months of the deceased’s death, unless the will has stipulated that the executor can delay the distribution of assets. All beneficiaries must be informed of this delay and be given an expected period in which they can expect to receive their entitlement.
  • All beneficiaries must receive a ‘Statement of Distribution’ from the executor that details exactly how their share of the estate was calculated.
  • To be presented with proper records and receipts of any costs the executor has claimed from the estate. If the executor is not able to produce such documents, they will be personally liable for any costs associated with administering the estate.

What is a Devastavit?

Devastavit is the term applied to an executor’s mismanagement of an estate. It also refers to the squandering of estate assets due to executor mismanagement.

Although devastavit is rare, it does occur, either as a result of deliberate or negligent actions on the part of the executor.

Actions leading to devastavit include:

  • Failure to observe the instructions laid out in the will
  • Continuing the business of the deceased without authorisation
  • Failing to track debts
  • The misuse of property and other assets under the estate

As it is an executor’s responsibility to preserve, protect and administer the estate with due diligence, if the estate suffers due to their maladministration, they will be held personally responsible for this breach.

Most cases of devastavit are settled in court, with beneficiaries seeking damages from the executor.

Case Study: Bird v Bird [2013] NSWCA 262

Part of the executor’s role is to identify and collect the assets of the estate and then distribute them according to the will. When executors fail to perform this role properly, they are liable for the oversight, as in the case of Bird v Bird.

In the case of Bird v Bird, the executors (two sons of the deceased and a solicitor) failed to discover that the deceased’s wife, Mona Bird, had paid the proceeds of a real estate sale into her personal account rather than into the account of the deceased. Because they failed in discovering this, they never recovered the proceeds, which should have been a part of the deceased estate.

The deceased’s daughter, Deborah Bird, who was a named a beneficiary, brought legal proceedings against the executors of the will. The basis for the lawsuit was that the executors breached their duties by not recouping the sale profits from Mona Bird and should thus indemnify the estate for those losses.

The Court of Appeal upheld the claim in devastavit, and the executors were ordered to pay $188,920.25 plus interest to Mona.

If you are the beneficiary of a will and believe the executors are not acting in the best interests of the estate, it is advisable to seek advice from a qualified legal professional as soon as possible.


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