What is an Executor?
An Executor of a Will is the person (or persons) appointed by the deceased to deal with the administration of their estate. Executors have numerous duties, including a duty under Section 25 of the Administration of Estates Act 1925 to collect in the estate and administer it in accordance with the provisions of the Will.
Other aspects of an Executor’s role can include making funeral arrangements, paying the debts of the estate, obtaining a grant of probate, preparing estate accounts and making distributions to Beneficiaries.
Where a person dies without making a Will, the person dealing with their estate is called an Administrator, but they essentially have the same duties as Executors, albeit as there is no Will, the rules of intestacy must be followed.
The role of an Executor is an important one and can often be fairly complex, particularly if the deceased had substantial assets or the provisions of the Will are not straightforward.
Disputes with Executors
Disputes with Executors can arise for many different reasons, but typically involve Beneficiaries who consider that the Executor is not performing their duties satisfactorily or in a timely manner.
Common complaints include unreasonable delays in the administration process, failure to identify all assets of the deceased or a lack of transparency in the administration process.
A failure to administer the estate properly and in a reasonable time by the Executor can lead to financial loss by the Beneficiaries, such as a loss of interest on pecuniary legacies and fines for late payment of inheritance tax. Claims can be made against the Executor for these losses and Banner Jones have considerable experience in dealing with Executor disputes. Many Executor disputes can be resolved collaboratively by negotiation and increased communication between Beneficiaries.
Removal of an Executor
Where it does not prove possible to resolve Executor disputes informally, Section 50 of the Administration of Justice Act 1985 provides a mechanism to seek the removal or substitution of an Executor/Administrator. Such an application has to be supported by compelling evidence as the court will not remove an Executor/Administrator lightly.
For an application to remove an executor to be successful, an applicant must demonstrate that the Executor’s conduct (or lack of) is sufficient to show that they are either incapable of unsuitable to carry out their duties.
A successful application to remove/substitute an Executor or Administrator will enable an alternate Executor to take over the administration and progress the matter through to conclusion.
Is it possible to challenge a Will?
Yes. There are a number of circumstances in which it is possible to challenge the validity of a Will. These include a lack of capacity or knowledge or approval of the testator, undue influence or fraud. Should you have any concerns regarding the validity of a Will, you should obtain legal advice from experienced will dispute solicitors such as Banner Jones as a matter of urgency.
What if I have been left out of a Will or am unhappy with the amount that has been left to me?
Under the Inheritance (Provision for Family & Dependants) Act 1975, it is possible for certain individuals to pursue a claim if they can demonstrate that the financial provision made for them is inadequate or unreasonable. If you are considering disputing a Will, our team of trust dispute solicitors can advise you on your options.
What is a Caveat and how does it work?
A caveat is a legal document issued by the Probate Registry that prevents a grant of probate being issued. The caveat will remain in place for a period of 6 months (unless voluntarily removed by the person entering it or by an order of the Court. A caveat can be renewed after 6 months. Caveats should not be obtained lightly or without justifiable reason as the Court can impose financial sanctions where it considers that a caveat has been improperly obtained. It is therefore advisable to obtain specialist legal advice from estate dispute solicitors before seeking to lodge a caveat.
Would I have to attend a court hearing if I pursue a claim?
Not necessarily. Our objective in any dispute is to seek to a successful resolution as quickly and cost-effectively as possible. This can include seeking to negotiate informally, attending a mediation and other methods of alternative dispute resolution. The vast majority of will and trust disputes do not reach a final court hearing.
Under what circumstances can I challenge the validity of a Will?
It is possible to challenge a Will If you believe it was not made correctly or fairly. Common grounds include lack of testamentary capacity, undue influence, or fraud. If you are disputing a Will UK, it is important to seek early advice from will dispute lawyers to protect both your position and the estate.
What does “lack of testamentary capacity” mean?
Lack of testamentary capacity refers to situations where the person creating the will may not have understood the nature of the document, their assets, or the implications of their decisions due to illness or diminished mental capacity.
What is “undue influence”, and how does it affect a Will?
Undue influence happens when a person is either pressured or coerced into changing or making a Will. If prove, the Will may be declared invalid.
How long do I have to contest a Will or make a claim against an estate?
Most claims under the 1975 Act must be made within 6 months from the date probate was granted. Contact our Will dispute solicitors as soon as possible to ensure you avoid missing key deadlines.
What happens if an Executor is not performing their duties correctly?
Where an Executor is not performing their duties, are mismanaging the estate or are failing to act in the best interests of the estate or beneficiaries our estate dispute solicitors can help apply to the court to remove them or replace them.