When an individual creates their Last Will and Testament, they often designate individuals close to them as executors. This choice stems from the trust the testator (the person creating the Will) has in these individuals to execute the terms of the Will faithfully, manage their estate affairs, and fulfil their desires. Occasionally, an executor might also be named as a beneficiary in the Will, which can lead to complications in certain situations. Conversely, being excluded from a Will could also be a source of contention.
To begin, let’s delve into the strategies for addressing scenarios where an executor, who is also a beneficiary, seeks to contest the Will.
When you hold the role of an executor, you are bound to act impartially and uphold specific responsibilities tied to your appointment. However, if you’re both an executor and a beneficiary and you decide to challenge the Will you are tasked with executing, you find yourself entangled in a conflict of interest. This is due to your disagreement with the Will‘s terms, which creates a disinclination to carry them out.
In such circumstances, fulfilling your duties as an executor becomes untenable, prompting a couple of available options. In most cases, the Will designates more than one executor, facilitating the resolution of conflicting interests.
The simplest resolution is to relinquish your position as an executor of the estate. By stepping down, you allow the remaining executor(s) to pursue probate and oversee the estate administration. This action eliminates the conflict of interest, enabling you to proceed with your claim against the estate.
Alternatively, you can retain your executor appointment while enabling the other executor(s) to initiate the probate application. The remaining executor(s) can apply for probate using their name(s), excluding your designation as an active executor on the probate grant.
Prospective claimants must also be cognizant of the pertinent limitations on estate claims. After the probate grant is issued, certain limitations come into effect. Consequently, seeking independent legal counsel at the earliest opportunity is crucial.
If the Will designates a sole executor, you can pursue a court application for an independent solicitor to assume the executor role. This step facilitates progress in your claim. The solicitor can apply for a limited grant, which permits them to collect estate assets without distributing the estate until the dispute is resolved.
In cases where no Will exists and the estate necessitates letters of administration, potential claimants should abstain from applying for letters of administration under their own name. Doing so would create a conflict with their role and the estate.
Throughout these considerations, an executor-beneficiary should contemplate placing a caveat on the estate. This action prevents the issuance of probate if the intent is to challenge the Will‘s validity.