Executor Delaying application for Grant of Representation ( Probate) - Why?

[juralhawk]

]In a case involving the family, a close relative of mine has almost certainly been unexpectedly included in a elderly relative's Will to the tune of many thousands of pounds. A substantial sum.

However, the elderly relative passed away earlier this year, and the sole executor, the only offspring has subsequently delayed the process of probate, to the extent he has not yet made an application. This intelligence is borne out by the online probate registry which as yet is not showing any reference to any application, and therefore no information on the Will.

The Executor would have been expecting to inherit the whole estate from his sole surviving parent, and would therefore have been extremely upset when he read the Will to discover that he had not in fact inherited everything. Indeed a sizeable chunk, close to a six fire sum, had been allocated elsewhere.

I cannot find any definitive information about this scenario. What happens if the Executor simply declines to register the Will?

Does that mean eventually he can claim there was no will/the will was not valid - it is his responsibility as I understand it for him to prove it is valid if there are questions marks ( and it is in his interests to indicate there are); does 'intestacy' rules then kick in, in which case he would stand to gain everything as if the Testator's instructions were set aside.

Is there a time period during which an Executor is legally obliged to make the application? I cannot find any reference to this.

And finally, is it possible to somehow 'contest' the will, perhaps argue it is invalid ( undue influence etc. or something along similar lines) before it is even necessary to apply for probate, get the Will effectively invalidated, and then claim as the Testaors only immediate relative/offspring of the Testator the inheritance under intestacy provisions?

Or, could it be explained that the main assets a property, currently on a leased tenancy cannot be sold until the tenancy is terminated, and that is the reason why the Executor is holding back.

I detect a pungent odour of rodent in this current scenario, and that the Executor is cooking something up, but what?

[Mr.P]

If the value of the estate is under the threshold for Inheritance Tax, there is no real time limit for applying for probate. However, if IHT is due, HMRC can and will levy fines along with interest after (I think) six months. That said, identifying all the assets of an estate can take time, so six months isn't always sufficient if the financial affairs are complex and diverse.

 

It is possible to contest a will, either the validity of it, or any bequests, but it is a very expensive and prolonged exercise. If the executor claims that a will does not exist, and a valid copy surfaces, he/she could be exposed to litigation and have to pay the costs of the claimant as well as the defence. If you suspect that the executor will claim rules of intestacy, it might be worth contacting the solicitors that drew up the will. I would strongly recommend that you (or rather, the relative) consults a solicitor experienced in contentious probate and they would be able to advise on the correct procedure.

[DeltaXRay]

Yes, a Will can be contested, and they often are. The expense of doing so will be as great as the parties allow it to become - there is a risk of becoming committed to spending more in the hope of achieving a bigger reward.

 

Unusually, England & Wales is one of the few territories in Europe where a Will may entirely disinherit a child or dependant. If you are in Scotland, then a Will which disinherits a dependant is automatically voided. But even in E&W, the 1975 Inheritance (Provision for Family and Dependants) Act does require a Will to make reasonable arrangements for the maintenance of a child or dependant. If the Will doesn't do that, then it will be adjusted by a Court. This needn't be expensive if the parties are amicable and willing to make the adjustment - sadly, this doesn't seem to apply to your circumstances, but I would advise an appointment with a local law firm which has a specialist in Family Law.

[juralhawk]

Thanks very much Mr.P, you provide a succinct answer. I had omitted to mention that the estate in question is well below the Nil Rate Band.

You indicate that there is no real time limit, and that is quite a concern because, in this particular instance, the elderly friends of the deceased relative are not in good health.

If they were to pass away ( and there is only one) the 'non-executor beneficiary' would have no-one who knew the circumstances at first hand to state that the Testator wanted them to benefit to the degree specified in the Will for good reason.

In other words, for example,a claim of undue influence could not easily be rebutted without their testimony.

It seems remarkable that it is possible for an Executor simply to drag their heels inexorably, and consequently the beneficiary be caused to lose out.

This state of affairs bears out my suspicion that the Executor is deliberately holding back on the basis that the beneficiary who in some respects is a 'vulnerable' person, would probably be inclined to capitulate if challenged over their share of the Will proceeds.

[juralhawk]

Thanks, DeltaXRay. Love the handle btw!

Yes, I'm afraid this is a classic example - or at least looks like being - of a frenzied scramble for money on the death of a relative. Money, or the acquisition of it, brings out the very worst characteristics in people.

I must be careful what I say, of course, but the beneficiary here ( A committed Christian, acting for all the right reasons) brought a great deal of joy into the elderly relative's life after their spouse died, whereas the Executor and their spouse were in fact extremely cruel and uncompromising.

The Will was clearly the relative's way of rewarding the beneficiary and I guess to some extent paying back the Executor for what they evidently perceived as neglect and unnecessary unpleasantness.

 

It is interesting these days that some people actually use their Last Will and Testament to 'hit back' at relatives and settle old lifetime issues, as it were, from the grave.

[DeltaXRay]

I'm a little concerned from your reply that I might not have expressed myself very clearly. Let me try to put that right:

 

If the estate and the deceased are in Scotland, and if the Will omits to make provision for their child (even if an adult by this time), then the Will is void. Yes, the procedure for an intestate death will be applied. Your relative, the stated beneficiary receives nothing.

 

If the estate and the deceased are in England or Wales, and if the Will omits to make provision for the maintenance of their child (even if an adult by this time), then, on application to the Family Court, the Will will be amended to make that provision. Probate will then follow, and your relative, the stated beneficiary, will receive an adjusted amount.

 

Only if the Will does make adequate provision for their child (even if an adult by this time), and there are no other parties in a position to challenge the Will, should you expect that the Executor will apply for a 'Grant of Representation' (E&W) or 'confirmation' (Scot). They will have a fee to pay - they may have instructed a Law Firm to do this for them. If they do not do so in a timely manner, you should contact your Probate Office or a Family Law Solicitor.

[Mr.P]

If they were to pass away ( and there is only one) the 'non-executor beneficiary' would have no-one who knew the circumstances at first hand to state that the Testator wanted them to benefit to the degree specified in the Will for good reason.

 

Depending on the exact wording of the will, should a beneficiary die before an estate is distributed, then their children would normally gain from the inheritance. However, this can get messy and is heavily dependent on the terms of all the wills of each of the deceased.

 

If the estate and the deceased are in England or Wales, and if the Will omits to make provision for the maintenance of their child (even if an adult by this time), then, on application to the Family Court, the Will will be amended to make that provision. Probate will then follow, and your relative, the stated beneficiary, will receive an adjusted amount.

 

Not quite true. Yes, the High Court can make a ruling to redistribute an estate if an adult child has been disinherited. Despite the bar room analysis in the press over the recent Ilott-v-Mitson case, a testator is still free to dispose of his (or her) assets as he sees fit. This is supported by Coventry(deceased)[1980]:

It is not the purpose of the Act to provide legacies or rewards for meritorious conduct. Subject to the court’s powers under the Act and to fiscal demands, an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases or, if he chooses to do so, to leave that disposition to be regulated by the laws of intestate succession.

 

In the case of Wright-v-Waters[2014], the judge made reference to both the Coventry and Ilott rulings and then rejected the claim brought by a disinherited daughter. In light of the afore mentioned cases, the High Court is generally reluctant to interfere in inheritance disputes, especially when the estate is of relatively low value.

[DeltaXRay]

Not quite true. Yes, the High Court can make a ruling to redistribute an estate if an adult child has been disinherited. Despite the bar room analysis in the press over the recent Ilott-v-Mitson case, a testator is still free to dispose of his (or her) assets as he sees fit.

. . .

Absolutely correct, in E&W.

I apologise if I had suggested otherwise.

The distinction I was trying to make was that between the provisions in E&W and in Scotland, and I don't think juralhawk has clarified that for us yet.

 

In the case of Wright-v-Waters[2014], the judge made reference to both the Coventry and Ilott rulings and then rejected the claim brought by a disinherited daughter.

. . . .

Again, you are quite correct. I hoped to have had made clear that the grounds for amending the arrangements of a Will in E&W are the 'adequate provision for the maintenance of a child' (even if an adult child), and not merely that a child was being disinherited. But in Scotland (and some other EU territories) that same disinheritance will automatically void the Will, and revert to intestacy. In most of the remaining EU territories, a disinheritance would trigger a formulaic redistribution, and a few such as RoI would redistribute on application.

I apologise if I have been unclear in making these distinctions.

 

It might simplify the advice if juralhawk would state the jurisdiction which applies. The username suggested that it might just be Scottish. And also, if in E or W, whether the sum remaining to the adult child would be enough for their 'maintenance'.

Edited October 10, 2015 by DeltaXRay

[juralhawk]

DeltaXRay

 

The case I have referred to would be in England & Wales jurisdiction. And thanks for your interest in my post.