You sent the message with good intentions. Maybe you were trying to reassure a sibling. Maybe you said something casual that felt appropriate at the time.
What you may not have realised is that every message you send during an estate administration is potentially discoverable in legal proceedings. Texts, emails, WhatsApp messages, voicemails — all of it can become evidence if a dispute escalates to litigation.
Why Informal Communications Create Problems
The issue with informal communications is not that they are wrong — it’s that they are ambiguous. Consider these examples:
- “I know this isn’t ideal but let’s try to make it work” — could be read as acknowledging the distribution is problematic
- “I’ll see what I can do” — could be read as a promise of additional consideration
- “Mum always meant for you to have more” — could be read as evidence the will doesn’t reflect the deceased’s true wishes
- “I’m sorry this is so hard” — could be read as an apology for improper conduct
None of these statements were intended to create legal problems. But words, once in writing, have a life of their own.
What You Should and Shouldn’t Put in Writing
Avoid putting in writing:
- Personal interpretations of the deceased’s wishes
- Speculation about what outcomes might be “fair”
- Promises or suggestions of exceptions to the will
- Emotional reactions to being challenged
- Detailed financial information before it is formally disclosed
Do put in writing:
- Factual updates on the status of the administration
- Formal notifications of entitlements and timelines
- Responses to formal questions, ideally through a solicitor
The Safer Communication Model
The safest approach for an executor in a contested estate is to channel formal communications through a solicitor. When a beneficiary receives a letter from a solicitor rather than a casual message from you, the dynamic changes. It becomes clear that the process is being handled according to legal requirements — not personal discretion.
Protecting Your Existing Messages
If you have already exchanged messages with beneficiaries that concern you, do not delete them. Deletion can itself be used against you even if it was done completely innocently.
Instead, speak to a solicitor about what you have said and how it might be interpreted.
Conclusion
Every executor should treat written communications as though they may one day be read in a courtroom. That does not mean formality in every message. It means awareness — and a deliberate approach to what you put in writing about the estate.
At Fennelly Legal, we help executors manage their communication risk from the start. Reach out to Fennelly Legal today.
Please Contact us to book a free chat (03) 5243 1959.
Stuart Day
Fennelly Legal