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Defending an Estate from a Will Dispute
If you are an executor of an estate (or an administrator if an intestacy arises) you may have to decide what to do if you are notified of a challenge to the estate.
It may not always be clear on what basis a challenge is being brought. In the early stages the challenger may not have very much information at all and may be asking you to provide them with documents and information.
To what extent should you pay attention to any letter you receive?
The general rule of thumb is that it is better to provide full and frank disclosure at an early stage to fend off potential claims against a deceased’s estate.
This is generally speaking a common sense approach – if information is not provided or withheld or a combative approach is adopted, the challenger instantly thinks that there is “no smoke without fire” and their belief that something is amiss is reinforced.
On the other hand an executor has a responsibility to the deceased and to the beneficiaries of the estate to ensure that they act reasonably and fairly and without incurring legal costs unnecessarily. Engaging with a disappointed beneficiary can be time consuming.
If a claim is potentially to be brought under the Inheritance (Provision for Family and Dependants) Act 1975 there is a six month deadline for bringing a claim from the date of the grant of probate and so failure to provide information about, for example, the size and nature of the estate and the disposition of the deceased’s estate could lead to proceedings being issued at court.
There is no such deadline in relation to contentious probate proceedings (where the validity of a will is being challenged) but in all cases it is sensible for executors to take legal advice at the earliest possible opportunity.
You may receive a Larke v Nugus request – this is a letter requesting information about the circumstances under which instructions were taken for the preparation of a will and its execution. You should seek legal advice about this before responding.
It may be that someone who is challenging a will has entered a caveat to prevent a grant being taken out. It’s important to take action if a caveat has been lodged to file a Warning if you, as an executor consider that the caveat isn’t justified.
If the caveator then files a document called an Appearance that caveat remains in force for 6 months and at the end of that period can be renewed. Generally thereafter to remove a caveat requires a consent summons to be filed with the Probate Registry signed by both parties – so it’s important to get legal advice as otherwise there could be significant delay in administering the estate.
It’s very important when you are defending an estate from a claim that you have a clear understanding of the strengths and weaknesses of the claimant’s case. However it is also vital that an executor should remain neutral with regard to any claim that is brought. That can be very difficult if the executor personally feels very strongly about the claim. If you are a beneficiary as well as an executor then it’s very important that you understand the nature of your responsibilities in both capacities and that that is made clear in any correspondence.
If the claim that is being pursued has merit then it’s wise to negotiate an out of court settlement by mediation or otherwise as soon as possible.
Any dispute is really between the person bringing the claim (the claimant) and the beneficiaries of the estate. You must remain neutral. It’s important that you act in the best interests of the estate and make sure the beneficiaries are aware of the claim and get their own legal advice. You must respond to reasonable requests for information about the estate. If the validity of the will is being challenged you may need to authorise disclosure of any will file prepared by the solicitor who drafted the will.
If you are to receive a relatively small fixed sum bequest in the will you may not need to be involved in any litigation, but if you are a residuary beneficiary (ie you receive a share of all of the deceased’s estate) or you’ve been left a substantial legacy, you will need legal advice. It’s often most cost effective to club together with the other beneficiaries and instruct one solicitor to avoid work being duplicated. It’s likely (but not always the case) that the estate will pay your legal costs but you must behave reasonably. Mediation can often be an effective way to resolve a will dispute.
You must be very careful to know which “hat” you are wearing when you make decisions about the dispute. You ought to have separate legal representation, so if you have instructed solicitors to deal with the administration of the estate it is usually not appropriate for them to also represent you in relation to any dispute if you are a beneficiary as well as an executor. It can be fatally easy for the lines to become blurred so that the person bringing the claim isn’t clear whether you are acting neutrally (which you must as an executor) or not. As a beneficiary you are perfectly entitled to deal with the claim but you need a litigation solicitor to help you with that and not a wills and probate solicitor. As an executor you need to act in the best interests of the estate, make sure that other beneficiaries are aware of the claim and respond to any reasonable requests for information about the claim. You may need to authorise disclosure of any will file prepared by the solicitor who drafted the will.
As a beneficiary if your interests coincide with other beneficiaries then the most cost effective way forward would be for you all to instruct one solicitor to represent you to avoid costs and work being duplicated.
In terms of legal costs in your capacity as executor, those costs will nearly always be met by the estate. That is not automatically the situation with regard to your role as beneficiary. So it’s really important that you are clear about your role and the likely costs involved in any litigation.
Sarah Young, Contentious Probate Solicitor
What our clients say:
My first meeting with Sarah Young was really great. She seemed to care about my situation and gave good advice on what we should expect throughout our case. My case has now come to an end thanks to Sarah. I would highly recommend her services to others in similar situations.
My claim was handled very professionally and dealt with really well and quickly on Sam’s part I appreciate all that Sam and the team did.
I can’t thank you enough for the way the claim was handled. After being in the accident, the thought of making a claim seemed like a lengthy and quite daunting procedure to take on, but you were really helpful and communication was brilliant throughout the whole thing. There was never a point where I felt confused or left in the dark about anything that was unfolding with the claim and the way you handled things was amazing! A cyclist who was involved in an accident with a motorist. Samantha Hirst at Ridley and Hall successfully negotiated a settlement with the motorist’s insurance company.
The case concluded as hoped. I was at all times treated with courtesy, consideration and empathy by Sarah Young who was at all times professional yet approachable in all matters relating to a very complex case. I personally thank her on behalf of myself and children for the way she conducted my case which brought great relief and a most satisfactory conclusion and will help us move forward.