An executor who fails to comply with family provision orders without lawful excuse may be ordered to pay the beneficiary's enforcement costs personally on the indemnity basis without recourse to the estate. Concerns about a beneficiary's mental capacity do not excuse non-compliance where the executor fails to provide evidence supporting those concerns or to pursue available remedies such as an application to the Guardianship Tribunal. The proper method of enforcing a family provision order is by administration suit or summons for payment of a legacy under s 84 of the Probate and Administration Act 1898 (NSW), not by liberty to apply in the original proceedings.
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