Contentious probate solicitors

As obvious as it seems, a thorough search should be carried out of the deceased’s residence. It is worth checking the property, including any places where the deceased may have kept all of their paperwork, or perhaps in an attic or other storage room.

If the Will cannot be found in the deceased’s property, and you are aware  the deceased used a particular solicitor during their lifetime, it may be that the solicitor is storing the original Will or a copy of the Will for the deceased and so it is worth making enquiries with them. If the firm of solicitors is no longer practising, the Solicitors Regulation Authority may able to assist in ascertaining where the Will is being stored.

Less frequently, banks store Wills for their customers and so it is also worth making enquiries with the deceased’s banks.

Finally, you can ask a company to carry out a Will search for a fee. This can identify where the Will is being held and by whom. However it is not compulsory to register a Will and so a Will may be in existence but not return any hits on a Will search.

If you know a Will exists but cannot be located, it may be possible to apply to the Probate Registry so that evidence of the Will’s contents can be accepted in place of the original missing Will. A copy of a signed Will can also be used for an application, though you will need to explain why a copy is being submitted in place of an original.

Anyone can challenge a Will on the basis they do not consider that it is a valid Will If they stand to benefit from the terms of an earlier Will or an intestacy if the last Will is set aside.

There are, however, only specific categories of people/close family who can bring a claim where they do not feel as though they have been left reasonable financial provision by the deceased. We can advise you accordingly.

It is always crucial to take certain steps as promptly as possible, including in some circumstances lodging a caveat at the Probate Registry to prevent a Grant of Probate from being obtained.  

There can be limited time constraints within which you must bring an action, or else there may be an ultimate defence to your claim.

The steps that follow will depend on a wide variety of factors, but it is expected that the parties will make some attempt at settlement discussions before Court proceedings are issued as a last resort.

You can still seek to challenge a Will, or bring a claim provided you are within time limits, after a Grant of Probate has been obtained. It is difficult to achieve practically and particularly where assets of the estate may have been distributed. It is therefore important that as soon as you become aware of a potential challenge to a Will or claim that you take the appropriate next steps without delay.

The time limit for contesting a Will ultimately depends on what type of claim you are seeking to bring, but it can be as little as 6 months from the date of the Grant of Probate.

This is something that will be decided on by a Court if the matter goes to a trial. Usually, the losing party would pay the winning party’s costs, but that is not always necessarily the case. There can be certain instances where the winner can pay the loser’s costs, or alternatively the costs can come out of the estate.

If a settlement can be reached before a trial, the parties can decide between them as to how the costs will be paid as part of any settlement.

Most Will disputes are settled without the need to either go to Court or for there to be a trial. The majority of Will disputes are suitable for mediation, or some other form of alternative dispute resolution where the parties’ focus is on trying to settle the matter.

If you have a legitimate concern as to the preparation of one or more of the Deceased’s Wills, you can enter a caveat in the estate at the Probate Registry. This prevents a Grant of Probate from being obtained. The caveat can be ‘warned off’, in which case you can either allow the Grant of Probate to proceed or enter an appearance. As soon as you enter an appearance, the caveat becomes permanent and it will remain in force until the matter is resolved.

A Larke v Nugus request is a letter sent to the firm of solicitors which drafted a Will requesting further information and documentation in relation to the circumstances in which the Will was prepared. Solicitors are typically expected to comply with the request in order to assist you in ascertaining what happened when a particular Will was prepared and to assist with your investigations in relation to the validity of a Will.

If the deceased died without leaving a valid Will their estate would be administered under the Intestacy Rules. These rules dictate who inherits the estate and in what shares. In general terms, those entitled to inherit are surviving spouses and children. If there is no surviving spouse or children then parents, siblings and more distant blood relatives would inherit.

Acting as an executor is not an easy task, and can take up a lot of time, which is not ideal, especially when grieving. So not only considering the below points, but also the personal implications when taking on such a responsibility is important.

Any executor that is appointed must have capacity to apply for a grant of probate. Capacity is in relation to an executor’s ability to act, in legal terms. An executor is unable to apply for a grant of probate if they:

• Are a minor
• Lacks mental capacity
• Are the former spouse of civil partner of the deceased
• Are bankrupt, insolvent, or in prison
• Are a non-trust corporation

Some executors with have different levels of authority, to deal with a deceased’s estate which will be indicated in the Will. The appointment may be either an absolute appointment, where there will be no conditions or restrictions as to when the executor may take up the appointment. Alternatively it may be a qualified appointment, where there can be limits as to when the appointment begins or ends, the assets which the executor can administer, and finally the place in which the appointment may be exercised.

There is no obligation to act as an executor. It is up the discretion of the person who has been named as the executor to renounce the position. However, if the executor who wishes to be removed has acted in any relation to the administration of the estate, then a court order will be required in order for their removal. Generally, this will be made to the High Court under section 50 of the Administration of Justice Act 1985.

However, if the executor has not acted in any of the practicalities of the estate, then renunciation will be made via a deed of renunciation and will need to be signed in the presence of witnesses to be lodged with the Probate Registry.

Furthermore, if a person has been named to act as an executor prior to the person’s death, then the above will not apply, and simply saying ‘no’ is applicable, as there is no formal legal procedure. But, if the Will has already been prepared, then the individual named must go back to the testator, and have that part changed, and ask them to name somebody else as an executor.

A personal representative of a Will typically has 12 months to properly administer an estate. However, sometimes an executor may not, therefore there are options and steps to encourage action to be taken. These include:

• Citation: A citation can force the person who has the right to obtain a Grant of Probate to take action in order to administer the estate.
• Citation to accept or refuse a Grant: Someone with a prior right to a grant does not take one but refuses to renounce. If the named executor is cited (evidenced) to citation their right to executorship will cease and the administration of the estate devolves as if they were never appointed.
• Citation to take probate: Where someone has intermeddled with the estate, but six months after the death has still failed to take a grant. They can then be compelled to take a grant in a specified time.
• Citation to propound Will: Method used where a person becomes aware that there may be a later Will that reduces their entitlement under an earlier Will or intestacy (person who has died without leaving a Will). This citation will direct the executors (in the later Will) to seek a Grant proving it, and where there is no response, then apply for an order of Grant as though it was invalid.

However, citation may not be appropriate if there a good reason for suspecting that the citation may delay the administration or may commit a devastavit (wasting of assets). In this circumstance, it may be deemed appropriate to apply to pass over the executor. 

Overall, the executors are those responsible for taking action or making distribution from an Estate once the Grant of Probate has been obtained. However if they are not doing so, trustees and beneficiaries can apply to the courts to compel an executor to take action in regards to the Estate.

An estate is insolvent when an 'estate’s assets are insufficient to meet the liabilities', meaning the total value is inadequate to pay its debts. The administration of such an estate will be governed by the Administration of Insolvent Estates of Deceased Persons Order 1986, which applies to the estates of those who die insolvent, including those who die after a bankruptcy petition has been presented.

The insolvent estate must be administered in one of three ways; by the personal representatives, pursuant to an administration action or pursuant to an insolvency administration order. See below for the consideration of each of the methods of administering an insolvent estate.

This will take place out-of-court and out-of-bankruptcy. However, it is important to note that the personal representatives must comply with the law of bankruptcy when dealing with the assets of the insolvent estate. This relates to the rights of secured and unsecured creditors, proof of debts, the valuation of future and contingent liabilities and lastly the priority of debts and other payments. Personal representatives do not have to be qualified insolvency practitioners but will have to obtain a grant of probate or letters of administration in the conventional sense. It is also key to note that when the insolvent estate is distributed, the ‘reasonable’ funeral, testamentary and administration expenses have priority over the preferential debts.

Such action is a claim brought by a creditor of the estate, for an insolvent estate to be administered under the court’s direction. The claim can also be brought by the personal representatives against a creditor. These claims are rare, as the courts are often reluctant to take on such role. However, if the claim is to go ahead, and the court has been satisfied that the estate is insolvent, they may order the administration of the estate to the bankruptcy court for the making of an insolvency administration order.

An insolvency administration order (IAO) may be made following the presentation of an insolvency administration petition. These are the equivalent of a bankruptcy order and a bankruptcy petition for a person who has died. Once an IAO has been made, the estate shall be administered in the same way as the estate of a living bankrupt.