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What If I Am An Executor And The Will Is Challenged?

There are various ways in which the Will can be challenged.  Two such ways are to challenge the validity of the Will itself and the other is to bring a claim under the Inheritance (Provision for Family and Dependents) Act 1975 where someone feels they haven’t been properly provided for.  This second way is not strictly a challenge to the Will but is an application to Court to ask that the Court vary the way in which the property passes under the Will. 

If someone is challenging the validity of the Will they may apply for a “Caveat” to be placed on the Estate which will prevent an Executor named under the Will from taking out a Grant of Probate if this has not already been done.  A Caveat is usually not appropriate where a person is not really challenging the validity of the Will but is rather intending to bring a claim under the Inheritance Act. 

A Caveat remains in place for 6 months but there are steps that can be taken by an Executor to have it removed.  

It is important for an Executor to take a neutral stance in relation to any claims which are brought  against the Estate.  

If you as an Executor are put on notice that a claim is going to be brought against the Estate  then the Estate administration process should be put on hold. 

If proceedings are issued against the Estate then Executors who have taken out of the Grant will be named as Defendants to the proceedings in their capacity as Executor. 

Nevertheless an Executor should still maintain a neutral stance and take steps to continue to preserve the assets of the Estate whilst the claim is pursued. 

If an Executor does not do this he or she runs the risk of having an Order for costs made against him or her personally. 

The situation is rather more complicated if you are both an Executor and a beneficiary.  In that case you have to wear “2 hats” in that you remain neutral as an Executor but you are entitled to defend the claim, if you are directly affected by it, in your capacity as beneficiary.  In that case it is important to realise that it is unlikely that your costs will initially be paid out of the Estate.  Instead liability for costs may be decided in the proceedings. 

If there is more than one Executor and not all of the Executors are also beneficiaries matters of conflict of interest are likely to arise and the possible need for separate legal representation. 

Should this situation arise you should seek legal advice. 

If you wish to know more about this, then please contact Grahame Henry at grahame.henry@clough-willis.co.uk or 0800 083 0815.