Practical advice for executors facing a Will challenge
Acting as an executor can be an arduous task; the role carries responsibilities, can be admin heavy, and it brings with it the need to deal with people going through a sad and difficult time. Sometimes, would-be beneficiaries can feel aggrieved if they think they have been left less than they consider to be a fair share of the deceased’s assets, and may decide to make a claim against the estate.
As executors act as the deceased’s representative, if this happens they will need to act quickly to resolve the issue and preserve the assets of the estate. Given that many executors agreed to take on the role as they were close to the deceased, perhaps because they are a family member, they may not have a great deal of legal knowledge or experience of dealing with situations like this. So being notified of a challenge to the estate is likely to be a major cause for concern.
Leanne Philp heads up our specialist team that deals with these claims, and has in-depth experience of dealing with these cases, which are referred to as contentious probate claims. She has some straightforward and practical insight to offer:
“Firstly, the advice is not to panic, but to seek specialist legal advice. It’s very important to take the right steps at this early stage, as executors can in certain circumstances find themselves personally liable if they don’t take appropriate action.”
How claims can arise
With divorce, second marriages and second families all becoming more the norm, it’s increasingly common for claims to arise from adult children who feel they haven’t been fairly dealt with under the terms of the Will. In addition, with more elderly people being diagnosed with Alzheimer’s and dementia, claims that the deceased did not have the necessary mental capacity to make a valid Will are also on the rise. Mistakes can occur in the drafting of a Will, or in the way that it was signed and witnessed.
Examining the basis of the claim
Leanne says that the first step should be to review the Will. Although a Will doesn’t have to be made public before probate has been granted, Leanne recommends that if a claim is raised, then the claimant should receive a copy of the Will. In some cases, this can resolve the situation, especially as it is not unknown for would-be claimants to be mounting what could be called a ‘fishing expedition’, and have no real evidence to bring a case.
Where executors are also beneficiaries under a Will, the best advice is for them to remain neutral, and seek legal opinion on how to proceed in these circumstances.
A Larke v Nugus letter
Basically, this is a request addressed to the solicitor or Will-writer who prepared the Will. It asks for information concerning the circumstances surrounding the writing of the Will, such as who was present when it was signed and witnessed, the mental capacity of the testator, and how and why this Will differs from any earlier versions.
Whilst there is no legal requirement to respond, it is usual for a reply to be sent. This would include copies of file notes covering the meeting held with the testator, and refer to their mental capacity at the time of making their Will. With this information to hand, Leanne and her team can review the facts and examine the case. Where mental capacity is raised as an issue, she will first obtain and then undertake a review of medical records.
Anyone who wishes to contest a Will can use what’s called a caveat. This is a document lodged at the Probate Registry which prevents the executors of an estate from obtaining a grant of probate and distributing the assets until the dispute has been resolved. A caveat is entered for six months, and can be extended innumerable times. We can offer advice on how an executor should respond to challenges of this nature. However, anyone seeking to lodge a caveat should seek advice before doing so as caveats should not be lodged in all cases.
The role of mediation
Before disputes can go to court, mediation should always be considered as the first option. Again, we can explain how this works, the best approach to take, and what to expect from the process.
We can also offer pragmatic advice on when a compromise might be appropriate in order to keep fees in check and protect the assets of the estate.
What to look for in a legal team
Choosing a team that not only has proven expertise in dealing with contentious probate, but can also call on the in-house skills and experience of their Wills, Trust and Probate colleagues makes good sense.
Where cases go to court, Leanne underlines the importance of using a team with good professional connections to experienced barristers. As she says, this is a complex and growing field of law, so you really need to work with people who have a comprehensive understanding of these matters that’s backed up by solid experience.
So, if you’re an executor and find yourself faced with a claim against the estate, do get in touch. You’ll find us highly-experienced, knowledgeable and approachable. Call us on 0203 871 0110 or email our Dispute Resolution Team