Problems and disputes
It is a sad but true fact that the passing away of a family member can cause a dispute within the family. The first sign of trouble is often preceded by the remark ‘It’s not the money that I’m bothered about. It’s the principle of the issue.’ Another sad fact is that the price tag of a dispute can reach exorbitant levels and devour the value of the estate that is in dispute.
Nevertheless, disputes do arise and have to be dealt with. They fall into two main categories.
Second, disputes can arise over the administration of the estate of the deceased individual.
Are the executors or administrators performing inappropriately or failing to do what they should be doing? Have they paid out to the wrong person or are they refusing to tell the beneficiaries what they have done?
This section first deals with both kinds of problems, and then discusses other common issues. If you are involved in a dispute over a will or administration, the best advice you will get is to try to settle it as promptly as possible, and maybe to have a word with someone with experience like Final Duties or the Probate Registry. If that cannot be done, you will almost certainly need to instruct a lawyer who knows their way around court actions and procedures.
Problems with a will
Executors are responsible for an estate, its assets and for obtaining a grant of probate before distributing the estate to the beneficiaries named in the Will. A lot of aspects to the estate administration are rigorously regulated by law, especially in regards to a person’s Will. A valid Will must be followed by its executors or they risk being held personally liable. Unfortunately executors frequently face problems which can obstruct progress and can also mean, at worst, that the rules of intestacy apply.
No Will can be found? The deceased person may never have made a will, but what if one of the relatives believes that the deceased did make one and it cannot be found? If a thorough search of documents and property fails to discover the will, one step is to write to local firms of solicitors and banks who might have been employed to make or keep a will on the deceased’s behalf. If all inquiries fail, the rules of intestacy apply. Final Duties offer this service to a customer who instructs us within our standard fees.
Was it signed properly? The will should be carefully checked to make certain that it has been signed by the testator and that the testator’s signature has been witnessed by two witnesses (who must not be beneficiaries to the will). Both witnesses must have been in attendance when the will was signed. As executor, if you have any misgivings about the signing of the will, check with the witnesses. If the will has not been correctly signed and witnessed, the Probate Registrar may declare it invalid or at the very least call for a sworn affidavit to explain the abnormality.
Was the will dated? If it is not dated, you have a predicament. Do the witnesses remember when it was signed? If so, the Probate Registry will require an affidavit to explain the lack of a date. Sometimes, it is evident that a will has been altered or that some other article has been attached. Give all the documentation you have to your solicitor, who can advise whether any of it should be counted as part of the will.
Is it the final will? Even if you find a will that is properly dated and witnessed, it may not automatically be the last will the deceased made. The older the will, the larger the chance that a later will exists changing its terms. Always make further investigation to be sure.
keep in mind, too, that even an apparently valid will may have been entirely or partly invalidated by subsequent marriage or divorce. Remarriage automatically revokes any earlier will unless that will was specifically stated to be made in consideration of the marriage. In particular, if there are children and a new will wasn’t made following a remarriage, the rules of intestacy will automatically operate after death.
Did the testator have `testamentary capacity’? In order to make a valid will, a testator must comprehend what is owned, know the effect of the will and recognise persons to whom the testator might have responsibilities —for example, a spouse with young children. As executor, if you believe the testator lacked testamentary capacity, you need medical proof to support your case and should take legal advice.
Probate actions can be very expensive, transferring a large amount of the estate to the solicitor and barristers that you may need to get involved.
Was the testator threatened or inappropriately influenced? Anyone wishing to dispute the will on these grounds must demonstrate that the testator was induced to make it by force, fear or fraud or that in some other way the will was not made willingly. Legal advice should be taken before attempting to dispute a will on these grounds. If someone decides to dispute the will, they are required to apply to the Probate Registry for a ‘caveat’. This prevents an application for probate being completed. It covers all registries and lasts for six months, If not renewed, it expires. whilst in force, probate cannot be issued. If a caveat has been registered, as executor, you initially have to resolve the problem with the claimant. If you cannot, you have to issue a warning to the Probate Registry, which has the outcome of beginning a court action to settle the disagreement. This is an area requiring specialist understanding, so seek legal advice at an early stage.
Is the will or distribution on intestacy unjust? If it is usually agreed by the beneficiaries that the will (or intestacy) has not made even-handed provision for all the interested parties, they can enter into a deed of variation. This has the effect of changing the will or intestacy rules. This step must be taken within 24 months of the death. If the variation reduces the share of a beneficiary who is under 18, the court’s consent must be obtained, If you wish to make such a contract, take legal advice. If there is no agreement and the subject remains in dispute, the only option is to take the dispute to court.
Other Probate Problems
Use what investigative qualities you have. In addition to family networks and newspaper advertisements, you could use the internet to find missing individuals. Genealogists can be engaged on a ‘no-find no-fee’ basis — check that their finding fee is a sensible percentage of the sum involved. You can also look at the possibility of insurance (don’t forget to allow for interest on the bequest), failing which obtain a court order allowing distribution on the assumption that the beneficiary has died without issue, or pay the money into court under the requirements of the Trustee Act 1925.
If you suspect that a beneficiary is bankrupt or about to be made bankrupt, you should make further investigation, as well as a search on form K16 at the and Charges Registry. Any payments due to a bankrupt must be made to that person’s trustee in bankruptcy who must produce a 5.307 notice under the Insolvency Act 1986. Under these circumstances, always talk to a solicitor.
Problem executors or administrators
If it appears that a personal representative is inapt or failing to carry out his or her executor duties, an application for removal can be made to the High Court. It is wise to ask a solicitor with specific experience for advice for help. Final Duties offer a free executor removal and advice service.
Claims by ex-spouses, children and family members
If there is an ex-spouse to whom maintenance is still being remunerated following a divorce or separation, that individual is entitled to make a claim against the estate, so keep in mind this possibility. The scope of the claim will depend upon the size of the estate and the other claimants. Similarly, a cohabitee or child of the departed who considers the will to be unjust can make a claim against the estate under the provisions of the Inheritance (Provision for Family and Dependants) Act 1975. Under the Act, the applicant has to file a claim no later than six months after the grant of probate or letters of administration. If there is any risk of a claim being prepared or made, executors should limit any allocation made during that six-month period. Having the right to claim does not mean that a person automatically wins the case if a claim is made, particularly where the claimant has not been dependent on the departed.
Completing the administration of the action is a matter for the court to decide. Such an individual is not paid automatically by the estate nor are the costs remunerated automatically from the estate.
Court of Protection
If the property of the person who has died has been administered by the Court of Protection (in cases of mental incapacity, for example), there are rules and regulations to go through with the court before the belongings of the deceased can come under the rule of the personal representatives. This usually requires the deputy to file final financial records at the Court of Protection but, if all parties concur, that requirement can be waived. The receiver is the person appointed by the court to look after the financial dealings of people who cannot look after themselves, known as ‘patients’.
If the deceased person had an overseas domicile (that is, the nation which was recognised as their permanent home), the law of the country of domicile applies to the management of the estate although probate (or letters of administration) will be required to deal with English and Welsh assets they owned.
In most cases but not always, if the deceased person owned property or land in another country, the laws there determine what happens to the property at death and take precedence over the English or Welsh will.