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Can an executor challenge a Will?

View profile for Jordan Davies
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Mental capacity - a case law review - Tociapski v Tociapski

When a someone drafts their Will, they frequently appoint people close to them to be an executor. This is often done as the testator (person making the Will) trusts this person to action the terms of their Will, administer their estate and carry out their wishes. Sometimes, an executor will also be a beneficiary under the Will and this can cause problems in certain situations.

As an executor, you must act impartially and uphold specific duties under your appointment. If you are also a beneficiary and find yourself to be in conflict with the terms of the Will and you wish to bring a claim against the estate then you will find yourself in a position of conflicting interests.

In such circumstances, it is not possible to fulfil your role as an executor and so there are a couple of options available to you. In most instances, there will be more than one executor appointed under the Will and this will assist you in addressing your conflicting interests.

The simplest solution to the conflict is to renounce your position as an executor of the estate. This means that you would step down as executor and allow the remaining executor(s) to apply for probate and administer the estate. This would remove the conflict of interest and allow you to proceed in bringing your claim against the estate.

In the alternative, you can retain your appoint as executor, but allow the other executor(s) to apply for probate. You can either allow the remaining executor(s) to apply for probate in their name(s) or you can ask for power to be reserved to you as a ‘dormant’ executor. This will allow the remaining executors to proceed with most aspects of estate administration whilst you consider your claim.

However, it is important for potential claimants to be aware of the relevant limitations on claims against estates. It may not always be in an executor claimant’s interest to assist in obtaining a grant of probate, as once probate has been granted, certain limitations come into play. It is for this reason that it is important to seek independent legal advice as soon as possible.

If the Will only appoints one executor, you can seek to apply to the court for an independent solicitor to be appointed as the executor of the estate, to allow you to progress your claim. A solicitor is able to apply for a limited grant wherein they are permitted to collect in estate assets but not distribute the estate until the dispute has been resolved.

If there is no Will, and the estate requires letters of administration, then the prospective claimant should not apply for letters of administration in their own name as this would place them in conflict with their role and the estate.

During the course of these considerations, an executor-beneficiary should also be considering placing a caveat on the estate to prohibit the grant of probate or letters of administration, though this is only appropriate in certain circumstances.

Disputes involving conflicts of interest can be complex and time sensitive. It is important to seek legal advice at the earliest opportunity to ensure that you do not take any action that would prejudice your position. Call our specialist inheritance dispute solicitors on 0161 696 6178.

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