Executor Sale Breach
The client entered into an undertaking with the executor and solicitors, agreeing to the sale of an estate property by late 2022, but the property was not sold, breaching the agreement. The executor has a long-term lease on the property, which is used to justify not selling, although the client believes this does not affect the executor’s obligation. The client possesses documentation as evidence, yet has not engaged legal advice since the breach. Conditions cited for the sale were completed by mid-2023, yet there has been no communication with the executor or estate solicitor about this completion. The client faces personal challenges, including being physically assaulted by the executor, who is a family member, and is concerned about maintaining care due to chronic health issues, while receiving a nominal rent from the estate.
Questions about this case
These answers have been verified by a lawyer in the LEAP networkWhat legal recourse do I have if the executor breaches the undertaking to sell the property?
If the executor breaches the undertaking to sell the property, you may seek legal recourse by applying to the Supreme Court of New South Wales to enforce the agreement, potentially through specific performance or an injunctive order compelling the sale. You might also seek damages for any loss incurred due to the breach. It is essential to gather and present all relevant evidence, including written undertakings and solicitor's file notes, to support your case. Consider seeking legal advice from a solicitor experienced in estate disputes.
Can the executor legally rely on the existing lease to delay the sale of the property despite the written undertaking?
The executor cannot legally rely on the existing lease to delay the sale of the property if a written undertaking agreed upon by the parties stipulated a sale by the agreed date. An undertaking is a binding obligation, and if it was agreed to sell irrespective of the lease, they may be in breach. The executor's obligation under the undertaking takes precedence if no conditions regarding the lease were documented.
What are the potential consequences for the executor and the estate solicitor if they fail to honour the undertaking?
If the executor and the estate solicitor fail to honour the undertaking, potential consequences may include being found in breach of fiduciary duties by the court. The court may order specific performance to enforce the sale or impose damages for losses incurred due to the breach.
How can my solicitor's file notes and the letters from the estate solicitor be used as evidence in this matter?
The solicitor's file notes and letters can demonstrate the existence and terms of the undertaking, proving that a breach occurred if the property was not listed as agreed. These records can establish the executor's acknowledgment of the obligation, which is essential should this matter escalate to court.
What steps should I take to enforce the undertaking and ensure the sale of the property takes place as agreed?
To enforce the undertaking and ensure the sale of the property, you should engage a solicitor experienced in estate disputes. This may involve a demand letter referencing the breach of the undertaking and the written agreements. Your solicitor can also assess the potential for filing an application in court for an order compelling compliance with the undertaking.
