The short answer: Yes, it is technically possible, but not how you might think!
What is an Executor
A question that often comes up when asked who you would like to nominate as your executor.
The role of an executor is to carry out your wishes as recorded in your last will and testament. The executor has a duty to act in the best interest of the estate and its beneficiaries. Should an executor fail to live up to this duty, this may constitute a breach of their obligations, and they could be held personally liable for mismanagement of the estate.
In fulfilling the executor’s duties to the estate, the executor is usually granted some discretionary powers by the will. These discretionary powers allow the executor to administer the estate and distribute the assets in a manner that the executor reasonably believes to be sensible, or at the request of the beneficiaries. Some examples of discretionary powers usually afforded to executors include:-
The discretion to choose to transfer an asset directly to a named beneficiary, or to sell the asset and distribute the sale proceeds to the beneficiary; and
The discretion to apply funds held in trust for a minor beneficiary toward the current needs of that beneficiary, such as education and maintenance.
There are also some circumstances where it might be necessary for your executor to vary from the specific wishes written in your Will.
How is it Possible for an Executor to Change my Will?
If there is a legitimate reason or need, an executor may make changes to the entitlements of the beneficiaries, at the request of and with the consent of the beneficiaries. The reasons for varying the entitlement may include one beneficiary being financially more secure than other beneficiaries, and wishing to pass on some of or all of their share. The way such changes can take place is through the beneficiaries and executor entering into a document called a Deed of Family Arrangement.
A Deed of Family arrangement may also be used to avoid long and expensive litigation if a beneficiary chooses to contest the Will. The process of entering in this arrangement would allow for any aggrieved people, together with the beneficiaries of the Estate, to negotiate a resolution that everyone is satisfied with.
While your executor cannot simply make changes due to their personal feelings or without legitimate reason, when deciding who to appoint it is always important to nominate someone who you know and trust. Taking into consideration the roles and its responsibilities should also factor into your decision when making your decision.
If you need help preparing your own will, or if you are the executor or beneficiary of a will, contact Baker Love Lawyers.
