Probate

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Your questions answered on Probate

WHAT DO YOU DO IF YOU CANNOT FIND A WILL?

What happens if a Will cannot be found among the deceased’s papers but is understood to have been made, enquiries should be made and an advertisement placed, if necessary? An Application may be made to the Registry to accept a copy will for the purpose of obtaining probate. Even a draft or a reconstruction may be acceptable so long as someone has extensive knowledge as to its contents. Where a Will was returned to the person making the Will, in the absence of evidence to the contrary, the presumption is that it was revoked by being destroyed. If a Will is believed to be in the care of someone who refuses to release it, an Application may be made to the Probate Registry.

WHO CAN APPLY FOR PROBATE?

A grant of probate can be obtained by any of the executors named in the will who are not under any legal disability and also subject to giving notice to all or any of the other executors. But an Action can be commenced against a person claiming to be entitled to letters of administration (where there is no will).

WHAT IS A CITATION?

A citation is a Notice in writing issued by the Registry requiring a person to take some step required to accelerate the probate process. It will include a time limit for carrying out the requisite act. There are three types of CITATION. A citation to take probate; a citation to accept or refuse a grant of probate; a citation to propound a will.

CAN THE COURT APPOINT ITS OWN ADMINISTRATOR?

Section 116 of the Supreme Court Act 1981 gives the Court power, where “necessary or expedient” to appoint an Administrator where, for example, the person entitled to a grant is considered “unfit” or is “inappropriate to act;” where the person has been found guilty of murder or manslaughter against the deceased; where a grant is required to enable proceedings to be issued against the Estate pursuant to Inheritance(Provision for Family and Dependents) Act 1975; where the person otherwise entitled has renounced probate and there is no one else able to act; the persons entitled are in dispute with one another or have a conflict of interest; where an executor has inter meddled in the Estate.

WHAT IS A CAVEAT?

If someone interested in the Estate wishes to prevent a grant of probate or Letters of Administration issuing, he can do so by entering a Caveat. The Caveat will be effective from the day after it is entered. The Caveat can be entered at any Probate Registry together with the Fee. A Caveat is effective for six months but can be extended for further periods of six months. The response to a CAVEAT is a WARNING. This is filed at the Registry and served upon the Caveator requiring the Caveator within 8 days of service to enter an Appearance. The customary reason for entering a Caveat is where there is some doubt as to whether the last Will is indeed the last valid Will. A Caveat can also be useful where a person interested in the Estate wants an opportunity of making representations as to who should take out the grant. Someone who has no real interest in the Estate should not enter a Caveat

WHAT DISPUTES ARISE RELATING TO THE WILL ITSELF?

The making of a Will is ripe for dispute as the Deceased, the person whose wishes are enshrined in the document, is not around to give evidence. The formalities of making a will are contained in the Administration of Justice Act 1982. The will must be in writing, signed by the testator, or by some other person in his presence and by his direction; it must be witnessed by two or more witnesses who must sign in the presence of one another, and the testator.

CAN THE BENEFICIARY CLAIM AGAINST PERSONAL REPRESENTATIVES?

Unhappy beneficiaries can bring proceedings against their Trustees to seek restitution to the Trust Fund or compensation on the basis that the executors or personal representatives have acted in breach of their fiduciary duty to wards the beneficiaries. They need to consider whether there has been a breach of Trust causing quantifiable loss. Regard must be had to the limitation period and the concept of Laches. A Trustee may rely upon Section 61 of the Trustee Act 1925 to relieve him of his liability.

WHAT ARE EXAMPLES OF BREACH OF TRUST?

Selling property at an undervalue;
Failing to dispose of depreciating assets;
Using Assets for his own use;
Investing totally unwisely;
Failing to discharge debts;
Failing to account for profits.

The onus upon an executor is not inconsiderable. He must act in good faith and appreciate a fiduciary duty towards the beneficiaries. He has a duty of loyalty and fidelity towards the beneficiaries.

The Court also has wide-ranging powers to direct such accounts and inquiries as it considers necessary to enable the administration of the Estate to be carried out. Under CPR 40, the Court may of its own volition order Accounts and Inquiries.

WHAT OTHER TYPES OF ACTIONS AND REMEDIES ARE THERE?

By way of example only:

The Court can remove Trustees
The Court can order an Injunction thereby preventing a Personal Representative taking any form of Action regarding the Estate.
It is possible to apply for an Administration Order whereby the Estate is administered under the direction of the Court).
The Personal Representative may seek a BEDDOE ORDER which in effect is the Sanction of The Court to either take or defend proceedings concerning the Estate.
The Personal Representatives may seek a BENJAMIN ORDER where inquiries regarding beneficiaries are inconclusive, thereby affording protection to the Personal Representatives in distributing the Estate on certain presumptions.
Disappointed beneficiaries may also be able to claim under the Inheritance (Provision for Family and Dependents) Act 1975. Here the deceased must have been domiciled in England and Wales. Those who can claim - within six months of the grant of probate (where there is a will or Letters of Administration (where is not a will) include the spouse or civil partner of the deceased; a former spouse or civil partner; any person living with the deceased as husband, wife or civil partner for two years immediately preceding the death; a child of the deceased; any person being maintained wholly or in part by the deceased immediately before the death; any person other than a child of the deceased who in the case of a marriage or civil partnership was treated by the deceased as a child of the family

Probate

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