Executor Disputes: What Happens When Executors Cannot Agree?

Obtaining the Grant Versus Administering the Estate

Executor disputes arise at two different stages, and the available remedies differ.

Before a grant. A named executor may apply for probate, join in an application with the other executors, allow the others to prove with power reserved to prove later, or renounce. Under section 16 of the Administration and Probate Act 1958 (Vic), a renouncing executor's rights in respect of the executorship cease, although the Court may later permit the renunciation to be withdrawn. Where a named executor neither proves nor renounces within six weeks of the death, an interested party, a creditor or State Trustees can apply under section 15 for an order calling on that executor to show cause why they should not prove or renounce, or why administration with the Will annexed should not be granted to someone else. Where a named executor is unsuitable, the Court may in a proper case pass over that person and grant administration with the Will annexed to someone else. Disputes about whether the Will should be proved at all are usually raised by lodging a caveat; see our guide to probate caveats in Victoria.

Where proceedings touching the validity of the Will, or for obtaining or revoking a grant, are pending, section 22 allows the Court to grant administration pending litigation. That administrator has the powers of a general administrator except the right to distribute the residue and acts under the Court's direction. Section 22 is tied to that kind of litigation; it is not a general remedy for disagreement between executors who have already proved.

After a grant. Once probate has issued, the executors have accepted office. Renunciation is no longer available. Even before a grant, an executor who has intermeddled in the estate will generally not be permitted to renounce: the Court has power to accept such a renunciation but, as a general rule, will not exercise it (In the Will of Lyndon [1960] VR 112). Disputes from this point concern the administration itself, and the remedies are directions, supervision by the Court and, in a proper case, discharge or removal under section 34.

Multiple Executors and Joint Authority

What any one executor can do alone is transaction-specific. Where probate is granted to only some of the named executors, section 18 of the Administration and Probate Act 1958 (Vic) allows the proving executor or executors to exercise all the powers of the personal representative as effectively as if all the named executors had concurred. Section 18 does not resolve a disagreement among executors who have all proved.

Where several executors have proved, they should treat significant decisions as joint decisions. In practice, dealings with land and many formal or institutional transactions (signing a contract of sale, registering share transfers, closing bank accounts, settling proceedings) are carried out by all proving executors, subject to the Will, the grant, title or registration requirements and the third party's own requirements. Once the administration is complete and the executors hold assets as trustees, for example under a testamentary trust, the general rule is that trustees must act unanimously unless the Will provides otherwise. The Supreme Court of Victoria applied that requirement of unanimity to co-executors and trustees in Beath v Kousal [2010] VSC 24, including when considering whether one of them could recover from the estate costs incurred without the other's agreement.

That structure works well where the executors trust each other and share an approach. It can fail badly where they do not.

Executor Duties in a Dispute

A disagreement does not suspend an executor's duties. Each executor must get in and preserve the estate, pay debts and administer it according to the Will and the law. Executors are fiduciaries: they must act in the interests of the estate and its beneficiaries as a whole, avoid conflicts between their personal interests and their duty, not profit from the office without authority, treat beneficiaries even-handedly and keep proper records. Under section 28 of the Act, a personal representative must, when lawfully required, exhibit in the Court on oath or affirmation a true and perfect inventory and account of the deceased's estate.

Where an executor is also a beneficiary, a creditor, a business partner of the deceased or a claimant against the estate, the conflict needs to be identified and managed early. An executor who uses the office to advance a personal position risks criticism, a refusal of costs indemnity or removal. Our guide to the duties of an executor in Victoria explains these obligations in more detail.

Deadlock Situations

Deadlock arises when a decision is needed and the executors cannot agree. Common examples include:

• whether to sell or retain a property forming part of the estate;
• the marketing strategy, agent or reserve for an estate property sale;
• whether to make an interim distribution to beneficiaries;
• whether to engage particular lawyers, accountants or valuers;
• whether to defend a family provision claim or settle it;
• whether to pursue or release a debt owed to the estate by a beneficiary; and
• how to deal with personal effects, jewellery and items of sentimental value not specifically mentioned in the Will.

Where the executors are also major beneficiaries, the deadlock can become entangled with their own entitlements, which makes it harder to resolve.

Interim Steps While Executors Disagree

Even while a dispute continues, the estate must be protected. Sensible interim steps usually include:

• keeping property insured, secured and maintained, and paying rates and other outgoings;
• collecting income and holding estate money in an estate account rather than in either executor's own account;
• agreeing in writing on who will do what, how information will be shared and which decisions require both executors;
• making no distributions, sales or settlements without the agreement of all proving executors or a court order; and
• keeping full records of every step and every communication.

Where estate assets are at genuine risk, for example because one executor is dealing with them improperly, the Court can make urgent orders. Under section 37 of the Supreme Court Act 1986 (Vic) it may grant an injunction or appoint a receiver where it is just and convenient to do so. Those orders depend on evidence of real risk, not just disagreement.

Disputes About Estate Assets and Sale of Property

Assets are often at the centre of executor disputes. One executor may want the family home sold to fund distributions; the other may want to keep it for sentimental reasons or because they hope to buy it themselves. Disputes about valuations, hidden assets or assets allegedly removed before death can deepen the divide. An executor who wants to buy an estate asset faces a clear conflict of interest and should not proceed without the informed consent of the beneficiaries, authority in the Will or the Court's approval.

Where the Will gives the executors a power of sale and one executor wishes to sell while the other refuses, the options include:

• an application to the Court for directions on whether the proposed sale should proceed, or for an order approving the sale under Order 54;
• asking the Court to supervise the administration, or the relevant part of it; or
• an application to remove the refusing executor where the grounds in section 34 are made out, for example because the executor refuses to act or is unfit to act.

Section 63 of the Trustee Act 1958 (Vic) is sometimes mentioned in this context. It allows the Court to authorise a transaction that is expedient but which the trustee lacks power to carry out. It is a narrow power-conferring provision, not a general way to break a deadlock where the Will already gives a power of sale.

Distribution Decisions

Before distributing, executors must deal with debts, taxes and potential claims. Under section 99 of the Administration and Probate Act 1958 (Vic), a family provision application must generally be made within six months after the grant, and section 99A protects a personal representative only for specified distributions made properly in accordance with its conditions. Statutory notices under section 33 of the Trustee Act 1958 (Vic) can also protect executors against claims they did not know about. See our guide to notices of intended distribution.

Even once those risks are managed, executors sometimes disagree about timing, whether to distribute assets in kind or sell them, and whether interim distributions are appropriate. These disputes often look procedural but reflect deeper disagreement about strategy, the beneficiaries' positions or the executors' own interests. Resolving the underlying disagreement is usually more productive than fighting about the mechanics. Where an estate has stalled, executors can face personal exposure for delay; see estate administration delays and executor liability.

Litigation Decisions

Decisions about litigation — whether to defend a family provision claim, whether to pursue a debt owed to the estate, whether to challenge a transaction involving an estate asset — are within the executors' joint responsibility. Where they cannot agree, or where the proposed litigation is significant, an application for advice or directions is often the safest course. An executor who obtains the Court's approval before suing or defending (sometimes called a Beddoe application, after Re Beddoe [1893] 1 Ch 547) is better protected on costs than one who litigates first and seeks an indemnity later.

For more on the executor's role in claims against the estate, see our companion article on defending a family provision claim.

Mediation Options

Many co-executor disputes are well suited to mediation. The issues are usually a mix of legal and personal; the people involved often have a long shared history; and the cost of running the dispute formally can be disproportionate to the amounts at stake.

A structured mediation — with the executors, their respective lawyers and an experienced mediator — can produce a workable protocol for the rest of the administration, even where the executors will not socially reconcile. Where beneficiaries' entitlements are to be varied as part of a settlement, a properly drafted deed signed by all affected beneficiaries is usually needed; see deeds of family arrangement in Victoria and our guide to mediation in estate litigation in Victoria.

Court Intervention

Where negotiation and mediation do not resolve the dispute, the Supreme Court of Victoria can intervene in several ways:

• Determination of questions and directions. Under rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic), a proceeding may be brought, without seeking general administration, to determine questions arising in the administration of an estate, for an order directing the executors to furnish accounts or to do, or not do, a particular act, or for an order approving a sale, compromise or other transaction. Executors and beneficiaries both use this procedure, and all the executors must be parties (rule 54.03). This is the least invasive remedy and suits one-off issues.
• Administration under the Court's supervision. The Court can order that the estate, or part of it, be administered under its direction, but under rule 54.06 it need not do so unless that order is necessary to determine the questions between the parties. This is expensive and is usually a last resort.
• Discharge or removal. Section 34 of the Administration and Probate Act 1958 (Vic) allows the Court, after a grant, to discharge or remove an executor who remains out of Victoria for more than two years, desires to be discharged, or refuses or is unfit or incapable of acting, and to appoint a proper person or trustee company as administrator in their place. The Court also has inherent jurisdiction over estate administration. In exercising these powers, the welfare of the beneficiaries and the proper administration of the estate are the central considerations (Letterstedt v Broers (1884) 9 App Cas 371). The Court of Appeal has held that "unfit to act" in section 34(1)(c) extends to breach and neglect of an executor's duties (Dimos v Skaftouros [2004] VSCA 141). Mere disagreement, or friction between executors, is not of itself enough; what matters is whether the executor's conduct or position is endangering the proper administration of the estate. Our guide on removing or replacing an executor in Victoria explains that process in detail.
• Replacing a trustee. Once executors hold assets as trustees, section 48 of the Trustee Act 1958 (Vic) allows the Court to appoint a new or additional trustee where that is expedient and it is inexpedient, difficult or impracticable to do so without the Court's assistance. Section 48 does not itself give power to appoint an executor or administrator.
• Inventory and accounts. The Court can require the executors to exhibit an inventory and account under section 28, or to furnish accounts under rule 54.02, providing transparency where beneficiaries are concerned about the administration.

Costs of Executor Disputes

Costs are in the Court's discretion: section 24 of the Supreme Court Act 1986 (Vic) expressly extends that discretion to the administration of estates and trusts. An executor is generally entitled to be indemnified out of the estate for costs and expenses properly incurred in the administration (see also section 36(2) of the Trustee Act 1958 (Vic)), and the costs of a properly framed application for directions are commonly ordered out of the estate. That indemnity is not unlimited. Costs caused by an executor's misconduct, unreasonable conduct or pursuit of a personal interest may be refused indemnity or ordered against that executor personally. Because estate costs ultimately reduce what the beneficiaries receive, the Court expects disputes to be conducted proportionately. See our guide to costs in contested will proceedings in Victoria.

Options for Beneficiaries

During the administration, a residuary beneficiary does not own any particular estate asset, but is entitled to have the estate properly administered (Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12). A beneficiary affected by a deadlock can ask the executors for information and accounts and, if that does not help, apply to the Court for an inventory and account, for the determination of questions, accounts or administration under Order 54, or for removal of an executor in a proper case. An early, properly framed letter often produces the cooperation the executors could not achieve themselves. See beneficiary challenges to executor decisions.

Practical Ways to Avoid Disputes

Most co-executor disputes are avoidable. At the estate-planning stage:

• choose executors who can work together — a shared history of cooperation matters more than family symmetry;
• be realistic about whether co-executors are necessary at all — a single competent executor with a well-chosen substitute is often a better arrangement;
• consider an independent professional executor where the family is divided or where the estate is complex;
• spell out specific powers in the Will — for example, a clear power of sale of the family home and guidance about timing;
• record the will-maker's reasons for non-obvious decisions; and
• talk to the proposed executors before signing the Will and make sure they understand and accept the role.

For Victorians thinking about appointment of executors and broader estate planning, see our companion guide on why every Victorian adult needs a Will and our overview of testamentary trusts.

When Legal Advice Should Be Obtained

Executors should obtain legal advice as soon as a material disagreement emerges, and before any executor takes a step the other opposes. Early advice often de-escalates the situation: a clear explanation of the executors' joint obligations, the cost trajectory of continued disagreement and the available alternatives tends to focus minds. Each executor may need separate advice where their personal interests differ.

For a step-by-step overview of the grant process, see our guide to probate in Victoria.

Primary Sources

• Administration and Probate Act 1958 (Vic) — ss 15, 16, 18, 22, 28, 34, 99 and 99A
• Trustee Act 1958 (Vic) — ss 33, 36, 48 and 63
• Supreme Court (General Civil Procedure) Rules 2025 (Vic) — Order 54 (rr 54.02, 54.03 and 54.06)
• Supreme Court (Administration and Probate) Rules 2023 (Vic) — procedure for grants of probate and administration
• Supreme Court Act 1986 (Vic) — ss 24 and 37

Related Reading

• Co-Executors Cannot Agree: What Happens in Victoria?
• Removing or Replacing an Executor in Victoria
• What Happens When an Executor Refuses to Act
• Family Provision Claims in Victoria
• Beneficiary Challenges to Executor Decisions in Victoria

Frequently Asked Questions

Where This Sits in Our Estate Litigation Guide

Executor disputes are one of the main streams of contemporary Victorian estate litigation. Our Estate Litigation in Victoria guide sets executor work alongside family provision claims, validity challenges and caveat proceedings. Related cluster reading: removing or replacing an executor, executor commission in Victoria, and probate caveats in Victoria. If the dispute needs to be acted on now, speak with our Estate Litigation & TFM Claims team.