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HOW TO CONTEST A WILL – REMOVING A PERSONAL REPRESENTATIVE AND/OR EXECUTOR

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss why and how a Personal Representative or Executor of an estate should or could be removed

What is an Executor or Personal Representative and why are they important in Will dispute and Will contest claims?

Here is a link to an article in the Law Society Gazette which explains what a Personal Representative/Executor does – in general they are appointed to administer the deceased’s estate in accordance with the terms of his/her Will.

https://www.thegazette.co.uk/wills-and-probate/content/103470

We have explained that part of the services that we offer under no win no fee arrangements include claims to ensure that an estate is properly administered (see https://www.willclaim.com/claim-types/no-or-improper-estate-administration/). It will be obvious that one way to do this is to remove or replace an Executor or Personal Representative who is not doing his/her job correctly. For example:

  • Where the estate is not being administered at all (perhaps a house has to be sold and the Executor has been persuaded by association with a beneficiary living in the house not to sell it)
  • Where the estate is not being distributed correctly (perhaps one beneficiary is receiving more than he/she is entitled to under the terms of the Will)
  • Where a key estate asset has been sold at a considerable undervalue
  • Where not all of the estate assets have been called in and sold
  • Where there are two or more Executors/Personal Representative and one (for example one who lives in or otherwise has an interest in a key estate asset) refuses to call in and sell that asset

What can be done to remedy estate mismanagement and to recover losses by way of a will contest or will dispute claim?

To be clear, any of the above if proven, can lead to a direct claim for damages against the Personal Representative and/or Executor which can be brought by your Will contest and Will dispute Solicitor on your behalf under a no win no fee arrangement. It is called a claim in “devastavit”. The following link to another article in the Law Society Gazette explains in detail: https://www.thegazette.co.uk/wills-and-probate/content/100661

Here is a snippet from that article:

PR’s will be liable for a ‘devastavit’ if they mismanage ‘the estate and effects of the deceased, in squandering and misapplying the assets contrary to the duties imposed on them, for which executors or administrators must answer out of their own pockets’ (Re Stevens [1898] 1 Ch 162).

Removal and/or replacement of the Executor and/or Personal Representative

What normally happens in cases of this nature where it appears that an issue whereby a Will contest or Will dispute claim may well arise, is that there is a period of engagement by way of correspondence with the ill performing Executor/Personal Representative in relation to his/her prospective actions or to get him/her to do something at all. This correspondence, if done correctly, can provide an alternative route to bringing a claim after the event; the replacement of the recalcitrant Executor/Personal Representative, possibly with an independent professional. Even the threat of this could be a sufficient lever to bring about the proper administration of an estate.

There are a number of ways in which your no win no fee Will contest and Will dispute Solicitors can obtain this. For example:

Section 50 Administration of Justice Act 1985

(https://www.legislation.gov.uk/ukpga/1985/61/section/50)

50Power of High Court to appoint substitute for, or to remove, personal representative.

(1)Where an application relating to the estate of a deceased person is made to the High Court under this subsection by or on behalf of a personal representative of the deceased or a beneficiary of the estate, the court may in its discretion—

(a)appoint a person (in this section called a substituted personal representative) to act as personal representative of the deceased in place of the existing personal representative or representatives of the deceased or any of them; or

(b)if there are two or more existing personal representatives of the deceased, terminate the appointment of one or more, but not all, of those persons.

(2)Where the court appoints a person to act as a substituted personal representative of a deceased person, then—

(a)if that person is appointed to act with an executor or executors the appointment shall (except for the purpose of including him in any chain of representation) constitute him executor of the deceased as from the date of the appointment; and

(b)in any other case the appointment shall constitute that person administrator of the deceased’s estate as from the date of the appointment.

(3)The court may authorise a person appointed as a substituted personal representative to charge remuneration for his services as such, on such terms (whether or not involving the submission of bills of charges for taxation by the court) as the court may think fit.

(4)Where an application relating to the estate of a deceased person is made to the court under subsection (1), the court may if it thinks fit, proceed as if the application were, or included, an application for the appointment under the M1Judicial Trustees Act 1896 of a judicial trustee in relation to that estate.

(5)In this section “beneficiary”, in relation to the estate of a deceased person, means a person who under the will of the deceased or under the law relating to intestacy is beneficially interested in the estate.

(6)In section 1 of the Judicial Trustees Act 1896, after subsection (6) there shall be added—

“(7)Where an application relating to the estate of a deceased person is made to the court under this section, the court may, if it thinks fit, proceed as if the application were, or included, an application under section 50 of the Administration of Justice Act 1985 (power of High Court to appoint substitute for, or to remove, personal representative).”.

Section 116 Senior Courts Act 1981

(https://www.legislation.gov.uk/ukpga/1981/54/section/116)

116Power of court to pass over prior claims to grant.

(1)If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the grant, the court may in its discretion appoint as administrator such person as it thinks expedient.

(2)Any grant of administration under this section may be limited in any way the court thinks fit.

If you consider 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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