Q My mom made a will under my sister's advice that, upon her death, her flat should be sold and divided equally into three shares for her three children. My sister put her name as an executor of the will.

At this moment, my sister is living in my deceased mother's flat after selling a flat she co-owned with her ex-husband. She asked our permission to stay in the flat, as she had no home for herself, her three children and a granddaughter.

We allowed her to use the flat for six months and then to sell it as soon as possible or, as she wanted, to buy over the flat at valuation price. Now, after 10 months, she made another request that we sell her the flat at $30,000 below the valuation price because she could not get a higher housing loan.

As an executor of a will, can she sell the flat at any price she wants and divide it according to the will? What would be a fair option for all of us? What legal rights does the executor have over the will of the deceased?

A Your sister, as the executor, is duty-bound to administer your late mother's estate in accordance with the contents of your mother's will.

She has no right to act in any way other than in accordance with the will. In doing so, she must also protect the beneficiaries' interest.

She should, therefore, sell the flat within a reasonable period of time from the date of your mother's death and distribute the proceeds equally among the three beneficiaries.

She may postpone the sale only if there is a good reason to do so in the exercise of her honest discretion and prudence. For example, if she is genuinely using her discretion to wait for a price better than the existing offers because the existing offers are below market rates or because property prices are moving up.

In your case, it appears that your sister has put herself in a position of conflict of interest or duty.

Her duty conflicts with her desire to postpone the sale, so that she may benefit herself by living in the flat or buy it at a price below the market rate. Her procrastination and intended purchase will deprive the beneficiaries of the prompt receipt of a greater amount of sale proceeds.

It appears that your sister has ignored your request to promptly sell the flat at valuation price.

From what you shared, there is no good reason for your sister to withhold the sale other than for her own benefit. In this case, you may seek your remedy in court, either for an order directing your sister to sell the property without further undue delay or to hold her personally liable to the beneficiaries for the profit they should receive if she uses due diligence in the administration of your late mother's estate.

This article was first published in The Sunday Times on Jun 8, 2008

Is this article useful to you?