While you cannot change the specific words of the Will, it may be possible to vary the way the assets of the estate are distributed among the beneficiaries. If you have been appointed as executor of a Will, you are bound to carry out the wishes of the deceased in accordance with the terms of their Will and according to law.
What if a gift in the Will cannot be carried out?
Some of the terms of the Will may be impossible to complete, for example if a beneficiary has died or cannot be found, or if a specific gift left in the Will has been lost or destroyed. In these cases you should seek legal advice to interpret the terms of the Will. The Will itself may make provision for ‘things going wrong’ in this way, but it is better to be safe if you are unsure.
Interpreting the Will is not the same as varying it. Where a gift fails, the Will and the general law decide what happens to it and the beneficiaries do not get to choose. See What are the duties of an executor in Western Australia?
Can the beneficiaries agree to change the distribution?
For example:
In his Will, Harry leaves half of his estate equally between his two children, Adam and Beth, and gives the other half to his wife Sally. All three have decided they want to split the estate into equal thirds.
If the executor and all of the beneficiaries are over the age of 18 years and have full legal capacity, they may be able to agree to alter the terms of the Will. This agreement should be formalised by way of a Deed of Family Arrangement.
What does a Deed of Family Arrangement do?
A Deed of Family Arrangement confirms the change to the distribution in the Will and gives the executor legal protection from any beneficiary who may later change their mind about agreeing to the change.
Should you use a template document?
If you do wish to vary the distribution of the assets of the estate then you should seek legal advice. It is important that any document you sign is drafted correctly and with reference to your specific circumstances. Be wary of downloading and signing any ‘template’ documents or forms found online. These documents may not be sufficient to protect your interests as executor.
Call the probate team on (08) 9220 4490 or see our estate administration page.
