How An Executor Can Defend A Challenged Will

Law, Court, Paper

Executors[1] have the responsibility of collating, protecting, and distributing a deceased’s Estate.  Up to four Executors can be named by the Testator to administer their last wishes and most view being placed in such a position of trust as an honour.  However, make no mistake, carrying out the duties of an Executor is time-consuming, and if someone decides to challenge the Will, your job will suddenly become much more stressful.

What grounds can a Will be challenged on?

A Will can be contested on the following grounds:

A claim can also be made under the Inheritance (Provision for Family and Dependants) Act 1975 if a person feels they should have been adequately provided for in a Will (they must fall under specific categories, such as a spouse or adult child, to bring a claim).

If a Will is challenged or someone believes you should not have been appointed as an Executor, a caveat will be issued, preventing Probate or Administration.  If this happens, as an Executor or Administrator, you must seek independent legal advice immediately.  Independent legal advice means advice from a solicitor who had no involvement in drafting the Will.  This is important as the Will may be challenged on its validity, regarding how it was drafted and/or executed, potentially resulting in a conflict of interest if you instruct the same solicitor (who drafted the Will) to defend the challenge[2].

Once a caveat has been entered, the onus is on you, the Executor or Administrator, to prove the Will is valid.

If you believe there is no justification for issuing a caveat and delaying the grant of Probate, your solicitor can issue a Warning to the caveat.

The warning is a notice to the person who issued the caveat (known as the caveator) that they have eight days to:

At this point, the caveator can withdraw the caveat; this happens in many cases if their reasons for the challenge are weak or difficult to prove.  The challenge is then ended, and Probate can be granted.

Larke v Nugus requests

A Larke v Nugus request is used to establish the circumstances surrounding the drafting of a Will.  It is often one of the first steps taken by a solicitor of a party seeking to challenge a Will.

Usually, a Larke v Nugus request will consist of a list of questions, for example:

Although there is no obligation to respond to a Larke v Nugus request, failure to do so can result in serious consequences, such as a costs order being made against you if the matter goes to trial.

The best way to deal with a Larke v Nugus request is to simply answer the questions in good time (try to do so within 21 days) and do not be afraid to state if you do not remember something.  Keep your answers neutral, remember, you have nothing to defend.  Above all, don’t panic, such a request is simply a fact-finding exercise.  However, if you do receive a Larke v Nugus request, it is imperative you seek legal advice in case a challenge to the Will is launched.

Challenges to Wills are becoming increasingly common.  If you find yourself embroiled in a dispute, remember – you are not obliged, as an Executor, to try and handle the matter alone.  By seeking advice from an experienced solicitor, there is a strong chance a challenge will swiftly be dispensed with, leaving you to continue with the job of honouring the deceased’s final wishes.

Please note, this article does not constitute legal advice

Hart Reade Solicitors is a full-service law firm with offices in offices in Eastbourne, Hailsham, Polegate and Meads.  We hold a Lexcel accreditation from the Law Society of England and Wales, and are members of The Association of Lifetime Lawyers.  To make an appointment with one of our civil litigation solicitors regarding defending a challenge to a Will, please phone our office on 01323 727 321.

[1] In the case of an intestacy, this responsibility falls to an Administrator appointed by the Court.

[2] Note – a caveat is not generally used in claims under the Inheritance (Provision for Family and Dependants) Act 1975.  Instead, a standing search, which is renewable every six months, will be issued.