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challenging wills and property co ownership

CONTESTING A WILL – DISTRIBUTING THE ESTATE IN THE FACE OF A CHALLENGE AGAINST THE WILL

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CAN EXECUTORS FACED WITH A CHALLENGE AGAINST THE LEGAL VALIDITY OF A WILL SAFELY DISTRIBUTE THE ESTATE?

This scenario might arise where after a Grant of Probate, a claim is raised or maintained that a Will is not legally valid; the most common claims in this regard are:

1. a claim the Will wasn’t properly signed (or at all) by the person making the Will and/or because his or her signature wasn’t witnessed by two witnesses who also signed the Will (see section 9 of the Wills Act 1837 – http://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/section/9);

2. a claim the Will isn’t valid because the person making it lacked sufficient mental capacity;

3. a claim the Will isn’t valid because the person making it was unduly influenced;

4. a claim the Will isn’t valid because the person making it didn’t have knowledge of its contents.

The problem here for the Executors is that the Grant can still be revoked (and the Will declared invalid) and the Executors can therefore find themselves liable for having distributed an estate in the face of (knowledge of) a will contest claim (against its legal validity). For a professional Executor or amateur Executor, this can mean a substantial claim to recover the wrongly distributed estate can be raised against him or her. Whilst the Executor or Executors can insist on an indemnity from the person who is interested in the outcome of such a dispute, namely the main or residuary beneficiary of the deceased’s estate, that is only as good as the status and means of the indemnifying party.

There are a number of solutions to this (in the face of reluctance on the part of the main protagonists to the claim – the beneficiaries under the current Will and those who would recover if it is proved invalid – to pursue it):

1. the Executors can bring a claim themselves to prove the Will in solemn form, but this is full-on litigation with huge costs risks and understandably the Executors are unlikely to want to commit themselves to such a course of action (see CPR 57 (1) and note the potential remedies etc – https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part57#57.1);

2. the Executors can make an application for Directions under CPR 64 for permission to distribute the estate unless the will contest claimant (or Defendant!) brings a probate action or will dispute claim within a set time limit. This is a “put up or shut up” application. If the will contest or will dispute claimant then does brings his/her claim, the Executor(s) can adopt a neutral stance and leave it to the real protagonists (see above) to bring and/or defend the claim as applicable.

We have set out below some useful parts from CPR 64:

Scope of this Section

64.2
This Section of this Part applies to claims –
(a) for the court to determine any question arising in –
(i) the administration of the estate of a deceased person; or
(ii) the execution of a trust;
(b) for an order for the administration of the estate of a deceased person, or the execution of a trust, to be carried out under the direction of the court (‘an administration order’);
(c) under the Variation of Trusts Act 19581; or
(d) under section 48 of the Administration of Justice Act 19852.

This second option is by far the safest course and should flush out any genuine claim. Moreover, simply the threat of it with warnings as to costs (that a claim for costs would be made against the reluctant claimant) should be sufficient. There is some relevant case law which should be reviewed in advance of proceeding with this, but see in particular, a very useful article on this area by Oliver Mitchell of Guildhall Chambers:

http://www.guildhallchambers.co.uk/uploadedFiles/Property_and_Estates_E-News_January2018.pdf

If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

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