Questions for Executor

bradsalmon

If there is a suspicion that pressure was put on the deceased to change their will, it's very difficult and very expensive to try to prove this.

agreed - although not impossible. Has anyone here done this or can lend an idea as to how to approach this, at least at initial stages where the facts of the 'case' are required.

Mojisola

bradsalmon wrote: »

Has anyone here done this or can lend an idea as to how to approach this, at least at initial stages where the facts of the 'case' are required.

The difficulty is that no-one will be obliged to answer your questions because you aren't the executor.

securityguy

The system is set up on the assumption that it is far more common for people to be unhappy about the contents of a valid will or its correct execution, than have evidence of the will being invalid or the executor being negligent or dishonest. Therefore the rules of probate start from the presumption that wills are valid and executors are honest, to protect the executor from vexatious behaviour by people who just want a larger slice of the estate on general principles.

Executors have, in general, no obligation whatsoever to furnish even beneficiaries, never mind third parties, with information about the estate or its handling while it is being dealt with. They are obliged to provide estate accounts to the residual beneficiary, they are obliged to deal honestly with beneficiaries and creditors, they need to furnish required information to the state and the will is a public document once admitted to probate. They have no obligation whatsoever to help people challenge the will, and may have an obligation to actively defend the will as being valid (they can certainly use the assets of the estate for this).

Yes, this makes challenging wills harder than if, say, you had rights to demand to see working documents. But you don't, and a little thought will show you why if the balance of assumptions changed then being an executor would become essentially impossible.

A common misapprehension in the world of school appeals is that if you show a technical flaw in the school's case (the letter is a day late, the signature is missing from one document, your name is misspelt) then you immediately win your appeal. You don't: the mistake has to be so egregious that it renders the whole process untenable, and even then the typical outcome will be to re-run the appeal. There is no benefit in raising endless technical points, or using the DPA or FoI to find small contradictions, or obscure claims of conflict of interest, but that doesn't stop people trying. They lose, but it makes the whole process far more unpleasant than it needs to be.

The same applies, mutatis mutandis, to wills: small technical errors do not invalidate the whole will, although it's more common for them to invalidate particular bequests; witnesses being poorly chosen, perhaps. But if the process were changed, then executors would be bombarded with vexatious demands from relatives who hope to either secure a pay-off to go away, or have some complex theory as to why proving the current will invalid might benefit them. Overall, leaving the balance of power with the executor is better public policy.

da_rule

As has been said, the will should have a revocation clause. Therefore all wills made previously are void. If your family member has a solicitor they used regularly (potentially the one acting as executor) and this solicitor drew up the will then they would know it was the most up to date one. I am also thinking that, as a new will invalidates previous wills, a company (like a solicitors firm) would have to dispose of the previous wills under data protection rules as they are no longer relevant.

Have you searched the probable record? A copy of the will would have been filed if a probate application has been made and it then becomes a public document. If probabate hasn't been filed yet then you have no right to see the will until it is filed (if it is filed).

TW1234

If eventually I lose my marbles and produce a will that is ultimately determined to be invalid, then would it not be better to revert to my last "proper" will rather than be intestate?
The revocation clause in my invalid will would fail, but there would be no available previous unrevoked will if it had been destroyed.
I thought that revocation needs to be in writing; tearing a will does not revoke it, so how much destruction is needed?

securityguy

"If eventually I lose my marbles and produce a will that is ultimately determined to be invalid, then would it not be better to revert to my last "proper" will rather than be intestate?"

It would depend. You might have, for example, left money to a relative with whom you have fallen out, or a charity with whom you now disagree. You might have set up a trust for your children which you now no longer wish to do, as they are adults. You might just flatly regret your decisions. The idea that old wills lurk, zombie-like, waiting to spring up, is not as good as intestacy, which is society's general "well, this is roughly fair" consensus.

The number of wills overturned on the grounds of testamentary incapacity is small. The number of wills which differ materially from intestacy is small. The intersection of the two is, I would suggest, invisible to the naked eye.

It is always open to the residual beneficiary to make bequests listed in any, or no, will, particularly if they can secure the agreement of other beneficiaries.

Yorkshireman99

TW1234 wrote: »

If eventually I lose my marbles and produce a will that is ultimately determined to be invalid, then would it not be better to revert to my last "proper" will rather than be intestate?
The revocation clause in my invalid will would fail, but there would be no available previous unrevoked will if it had been destroyed.
I thought that revocation needs to be in writing; tearing a will does not revoke it, so how much destruction is needed?

Destroying a will with intent to revoke it does just that! The problem is, a question of proof, after the testator is deceased. Far better to put a revocation clause in a subsequent will AND destroy the old one.

da_rule

If someone "loses their marbles" then the new will would not be valid, as said. Also, a solicitor should not take instruction form someone in such a state. If the new will is not valid then the revocation clause contained within it is also not valid. Therefore the last will made when someone was of sound mind could be used. If this has been lost then it is possible to apply for probate using a copy (although this is difficult) and it is possible to ask the court to reconstruct the will (even more difficult and expensive).

If the will has been purposely destroyed by the testator (or on their instruction) then it has been revoked. There may still be an argument here regarding their soundness of mind.

da_rule

Yorkshireman99 wrote: »

Destroying a will with intent to revoke it does just that! The problem is, a question of proof, after the testator is deceased. Fat better to put a revocation clause in a subsequent will AND destroy the old one.

If you attempt to apply for probable with a copy of a will you have to convince them that it is merely lost and hasn't been purposely destroyed.

getmore4less

If they don't want to oblige you will need a court order to get what you want.

Present your case for the caveat and let a judge decide.

Are you prepared to renew without presenting any case?