Executors facing Will challenges: A Guide
Being named an Executor of a Will is a sign of trust from the person making it. It signifies the important role you play in carrying out their final wishes and distributing their estate. However, this responsibility can become overwhelming when faced with contesting beneficiaries or unclear Will terms.
If you are an executor encountering challenges, here is some guidance to help you navigate the situation.
Contesting beneficiaries/claims against estates
It is important to remember that emotions can run high, especially when an individual feels they have not received what they felt they were due or promised. As an Executor you have a duty to remain neutral when a dispute arises, however it is important to listen to the concerns of the contesting beneficiaries and understand their position.
Where you experience a dispute between beneficiaries whilst it might be tempting to try and resolve it, an executor needs to remain neutral and should instead advise the beneficiaries in conflict to obtain their own independent legal advice.
Where there is a challenge against a Will or a claim against an Estate, again the Executors should not try to defend the challenge or claim but rather should advise the beneficiaries or claimant to take their own legal advice.
Executors may feel encouraged instructing their own solicitor specialising in contentious wills and estates who will be able to advise on their legal obligations and help them explore potential solutions to either resolve or de-escalate the matter. This may be through negotiations between the concerned parties or even mediation. It is common for parties to a dispute to try and reach agreement without the need for the Court to become involved as this will save time and money.
Unclear Will terms
Even in situations where the beneficiaries are happy with their inheritance under the Will, there can be situations whereby the drafting of the Will is wrong or unclear which results in ambiguity as to how the estate is to be distributed. It is therefore important for the Executors to seek advice and not allow personal opinions to influence how the estate is distributed.
Where it is the construction of the Will which is unclear, it is helpful to gather relevant information related to the Will’s creation. This can include previous drafts, communications with the Will writer or personal notes. Often this information may be held by the Will writer or a solicitor. Your solicitor will be able to assist in obtaining these documents. This information might assist with understanding the construction of the Will.
If ambiguities remain, an application can be made to the court. The Court will then, upon consideration of all the facts, make a formal ruling on the interpretation of the Will’s meaning.
However, where there is a clear error in the drafting of the Will or Codicil, a solicitor can assist in determining the issue and obtaining evidence to assist the Executors. It might be necessary to make an application to the Court for rectification of the Will so that it complies with the person making the Will’s intentions.
Such applications need to be made promptly as there is a short timeframe of six months from the date of the grant of probate within which to do so.
Being an Executor can often lead to unforeseen challenges and it is important not to allow these challenges to overwhelm you. It is important that as an executor you keep a clear record of all expenses you incur, as well as any communications or actions taken in the administration of the estate. Missing deadlines in relation to applications or tax payments can lead to penalties, personal liability and further complications.
Contact Us
Please do not hesitate to get in touch with our specialist Contentious Probate Solicitors, who will be able to provide guidance to help protect your interests and ensure a smoother resolution to any potential problems. Contact Tara McInnes at tara.mcinnes@theburnsidepartnership.com or Edward Capstick at edward.capstick@theburnsidepartnership.com.