Defending a Will

 

Losing someone you love is a life-altering experience. Finding yourself being named as an executor of your loved one’s will is an added life-changing experience. You may be flattered if you find out that you are named as an executor, but you might also be wondering what to do next.

 

The testator, the one making the will, can name up to four executors.

 

As an executor, you may or may not be one of the beneficiaries – those who stand to inherit under the will.

 

If you find yourself as the sole executor, the task may even be more unnerving. If this task is too much, you have the option not to accept the role of an executor.

 

If you accept the role, you have the responsibility to defend the last wishes of the deceased – to see to it that his or her last wishes are followed.

 

Valid Last Will

 

It is fruitless to defend an inherently invalid will.  You need to determine the validity of the will by checking the following important factors:

 

  • -The will must be the last or the most up-to-date version of the deceased will;
  • -Last will must be in writing;
  • -Will appoints an executor to dispose the estate – the deceased’s remaining possessions, money and property;
  • -Will has not been tampered;
  • -Signed by the testator or signed on his or her behalf, in his or her presence and direction; and
  • -Signed in the presence of two witnesses who signed the last will in the presence of the testator.

 

Only those who are not blind and have the capacity to understand the effect and nature of their actions can be a witness. In addition, a witness should not be the spouse or civil partner of the testator. Beneficiaries of the will are also disqualified from being a witness.

 

Defending a Low Value and Uncontested Will

 

If the estate of the deceased is of low value and uncontested, the wishes of the testator can easily be followed through this process:

 

  • Collect the assets;
  • Pay any debts; and
  • Distribute the estate to the beneficiaries named under the will.

 

Low value estate refers to the following:

 

  • The total estate is worth less than £5,000;
  • The estate does not include shares and stocks; and
  • The estate passes to the surviving spouse or partner as in the case of joint bank accounts.

 

However, even if the amount is less than £5,000, some institutions require a grant of representation (known as grant of probate in England, Wales and Northern Ireland, and known as grant of confirmation in Scotland) before the assets can be collected by the executor.

 

The grant of representation is basically a legal document that gives you the legal right to dispose the deceased’s assets according to his or her last wishes. This legal document is issued by a section of the court known as the Probate Registry.

 

Defending a High Value and Contested Will

 

Without exception, as an executor of the will, you need to apply for a grant of representation in the following cases:

 

  • Total assets are worth more than £5,000;
  • Property or Land are held as “tenants in common” with another person or solely owned by the deceased; and
  • Presence of shares, stocks and insurance policies.

 

Defending a high value will can overwhelm an inexperience executor. Even where the executor may be acting in good faith, there are situations which can have a major impact on executors, even leading to personal costs orders being made.  This overwhelming situation can be intensified in case someone or more than one person contest the will or the grant of representation application by registering a caveat.

 

What is a caveat?

 

A caveat is a legal procedure that intends to stop or prevent the issuance of a grant of representation.

 

Hereunder are some of the grounds for filing a caveat:

 

  • -Allegation that the testator was not mentally competent when the last will was made;
  • -Allegation that the will was not properly witnessed and signed;
  • -Allegation that the will was tampered in some way;
  • -Allegation that you have no legal standing as an executor; and
  • -Allegation that you are not “fit and proper” executor and such should not be issued a grant of representation.

 

A caveat can be filed by one who has interest in the estate (person entitled to share in the estate) or one who has contrary interest (person who has a different interest from the grant applicant).

 

To defend a high value and contested will, you, therefore, need to have evidence of the following:

 

  • -Proof that the deceased was “of sound mind” at the time the last will was made;
  • -Proof that the will was properly signed and witnessed:
  • -Proof that the will was not tampered;
  • -Proof that you have a legal standing to act as an executor; and
  • -Proof that you are a “fit and proper” executor to be issued a grant of representation.

 

If you are successful in having the caveat removed or you have reached an agreement with the caveator (one who filed the caveat), your grant of representation application can then move forward. The grant of representation issued under the seal of the court means that the will is declared valid.

 

Once you get the grant of representation or grant of probate/confirmation, you can then continue to fulfill the wishes of the deceased by following this basic process:

 

  • -Paying the inheritance tax (if the estate’s value is more than £325,000);
  • -Collecting the assets (money from bank deposits or money from the sale of the deceased’s property);
  • -Paying debts such as utilities bills; and
  • -Distributing the estate to the beneficiaries of the will.

 

In defending the will, as an executor, you will not in normal circumstances have to pay for the litigation process from your own pocket. The total cost of defending a will can be paid out from the estate itself.

 

Your role as an executor, however, does not end after the distribution of the deceased’s estate to the beneficiaries. Being an executor is a lifelong role as claims can still be filed against you and you have to deal with these claims.

 

There is, therefore, a need to seek the assistance of a solicitor especially in defending a high value and contested will. The solicitors at HH Legal understand the pressure that you are in.

 

HH Legal is a specialist firm of solicitors offering expert advice on a range of complicated legal areas, including contested probate, bullying and harassment and contract law.