Is this will valid

youyangs

bobster2 said:

youyangs said:

Negotiations are progressing, but I have a couple of questions. Wondering if anyone knows the answers?

 - the will identifies an executor, but if they refuse or are unable to act then someone else is appointed. What is the situation  where both have acted? How can it be possible for both to act?

- a Substitutional Provision directs the residue to an organisation, but the will author had intended to benefit a child beneficiary via their parents. If the parents had pre-deceased the will author, this intention wouldn't have materialised. Does this show a want of knowledge and approval?

So the parents have not pre-deceased the author? But you want to argue that because the will writer didn't take this possibility (that didn't materialise) into account - this somehow shows the whole will is invalid (based on your view of their intentions)?

It thinks this shows "clutching at straws" on your part rather than a solid ground for challenging a will.

It is fair comment to call this clutching at straws. I considered the same thing myself. It would be clutching, if the issue was my main head of claim, It isn't even close to being the case though. However the matter remains of interest.

One of the main defences of the other party is that the residual estate has been directed to them, because the intention of the disposition was that their daughter would receive the inheritance. If a Substitutional Provision had the potential to prevent this, then that is significant. Especially as the substitution should have been a Default Beneficiary according to the will instructions. Which executed correctly, wouldn't have prevented the daughter inheriting, even if her parents pre-deceased.

sheramber

youyangs said:

p00hsticks said:

youyangs said:

 - the will identifies an executor, but if they refuse or are unable to act then someone else is appointed. What is the situation  where both have acted? How can it be possible for both to act?

I'm not quite sure what you mean here.

You can have multiple executors named in a will, and they would be expected to work together jointlly to manage the estate and jointly submit any probate application.

If one doesn't wish to be executor, then they can either 'reserve powers', which means they then don't take an active role but gives them the opportunity to step back in later if needed, or they can renounce their executorship completely and walk away.

 If all executors renounce, then someone will need to apply to administer the estate.

Perhaps I didn't explain myself very well? The will explicitly states that there is an executor. If they refuse, or are unable to act then another named individual would be executor. But the first executor has acted and not reserved power. The other executor has also acted. I can't understand the point of the clause, if it can be ignored?

Do you mean the will sates that if A refuses or is unable to act then B acts as executor?

If so, then if A did not refuse and was able to  act then B is not entitled to act as executor.

youyangs

That’s my understanding as well. The Will is explicit about this.

Sarahspangles

sheramber said:

youyangs said:

p00hsticks said:

youyangs said:

 - the will identifies an executor, but if they refuse or are unable to act then someone else is appointed. What is the situation  where both have acted? How can it be possible for both to act?

I'm not quite sure what you mean here.

You can have multiple executors named in a will, and they would be expected to work together jointlly to manage the estate and jointly submit any probate application.

If one doesn't wish to be executor, then they can either 'reserve powers', which means they then don't take an active role but gives them the opportunity to step back in later if needed, or they can renounce their executorship completely and walk away.

 If all executors renounce, then someone will need to apply to administer the estate.

Perhaps I didn't explain myself very well? The will explicitly states that there is an executor. If they refuse, or are unable to act then another named individual would be executor. But the first executor has acted and not reserved power. The other executor has also acted. I can't understand the point of the clause, if it can be ignored?

Do you mean the will sates that if A refuses or is unable to act then B acts as executor?

If so, then if A did not refuse and was able to  act then B is not entitled to act as executor.

What do you mean by ‘acted’?  One of the checks when an executor applies for probate is that the named executor(s) are applying. If A applied then that would satisfy HMCTS. There’s nothing to stop A from subsequently asking B to help with the administrative burden of dealing with the estate although in that case they are acting under A’s authority although some actions would require A’s signature.

Or do you mean that both A and B applied for probate?

youyangs

B applied for probate. A has cleared items from the house, given some to charity, sorted the funeral bills, originally refused access to a copy of the Will, has been dealing with bank accounts etc

youyangs

Unsure if A also applied for Probate?

Sarahspangles

youyangs said:

B applied for probate. A has cleared items from the house, given some to charity, sorted the funeral bills, originally refused access to a copy of the Will, has been dealing with bank accounts etc

So the other way round then - A decided not to act as Executor and the responsibility then passed to B.  So long as what A was doing was accepted by B, what is the issue?

youyangs

B should only act if A doesn’t.

Sarahspangles

Is any of this relevant to your main issue, which is the caveat raised to challenge the will either on grounds of capacity, or of undue influence? You’re not adding to that ‘case’, just muddying the waters - if the Will isn’t valid to start with you’re shooting yourself in the foot by alleging it wasn’t properly executed!

Apologies for the mixed metaphor there   

youyangs

Good question. This executor has prevented access to medical records, restricted access to a family home, won’t reveal if there is a Will file and is a close friend of A.