Can an Executor Contest a Will?

When a person dies, the executor named in their will is responsible for administering the estate in accordance with its terms. This includes gathering in the assets, paying debts, and distributing the remainder to the beneficiaries. Executors occupy a position of trust and are expected to act impartially, carrying out the wishes of the deceased as expressed in the will.

However, situations can arise where an executor has doubts about the validity of the will or believes that it does not reflect the deceased’s true intentions. This leads to an important legal question – can an executor contest a will?

At Blackstone Solicitors, we advise clients across England and Wales on all aspects of probate law, including disputes involving executors. This article explains when and how an executor might challenge a will, the legal principles involved, and the practical considerations to keep in mind.

Please click here to find out more about our Wills and Probate services

Free Initial Telephone Discussion

For a free initial discussion with a member of our New Enquiries Team, get in touch with us today. We are experienced in dealing with all the legal aspects of Wills, Probate and Trusts, and once instructed, we will review your situation and discuss the options open to you in a clear and approachable manner. Early expert legal assistance can help ensure you are on the best possible footing from the start and also avoid the stress of dealing with these issues on your own. Simply call us on 0345 901 0445 or click here to make a free enquiry and a member of the team will get back to you.

The Executor’s Role and Duties

An executor’s primary duty is to carry out the instructions in the will and act in the best interests of the estate as a whole. Their responsibilities include:

• Identifying and valuing the assets of the estate.
• Paying debts, taxes, and administration expenses.
• Distributing the estate in accordance with the will.
• Keeping accurate records and accounts.

Executors have a fiduciary duty, meaning they must act honestly, with integrity, and without allowing personal interests to conflict with their duties.

When Might an Executor Want to Contest a Will?

An executor may wish to contest a will for several reasons, including:

1. Doubts About Validity

If the executor believes that the will is invalid – perhaps because the deceased lacked mental capacity, was unduly influenced, or the will was not properly signed and witnessed – they may consider challenging it.

2. Disputes Over Interpretation

While technically not a “contest” in the sense of disputing validity, disagreements over the meaning of the will’s provisions may lead the executor to seek a court ruling.

3. Personal Interest as a Beneficiary

Many executors are also beneficiaries. If the executor stands to inherit less under the will than they believe was intended – or compared to what they would receive under an earlier will or intestacy – they might challenge the will in their capacity as a beneficiary.

Acting as Executor and Contesting the Will – The Legal Position

An executor can contest a will, but their position is more complex than that of an ordinary beneficiary.

1. Conflict of Interest

An executor is expected to administer the estate impartially. Contesting the will puts them in a position where their personal interests may conflict with their duties.

If they wish to bring a claim challenging the will, they may need to step aside from their role as executor, either temporarily or permanently. In some cases, the court may appoint an independent administrator (often referred to as an administrator pendente lite) to deal with the estate while the dispute is resolved.

2. Locus Standi (Legal Standing)

To contest a will, the executor must have a legal interest in the outcome. This usually means they must be a beneficiary under the will in question, under an earlier will, or under the rules of intestacy if the will is set aside.

3. Types of Challenge

The main grounds on which an executor (or anyone) can contest a will include:

• Lack of testamentary capacity – The deceased did not have the mental capacity to make a valid will.
• Lack of due execution – The will was not signed and witnessed in accordance with legal requirements.
• Lack of knowledge and approval – The deceased did not fully understand or approve the contents of the will.
• Undue influence – The deceased was coerced into making the will.
• Fraud or forgery – The will is not genuine.

Procedure for an Executor Contesting a Will

The steps an executor must take will depend on whether probate has already been granted.

Before Probate is Granted

If there are concerns about the will’s validity before probate is issued, the executor (or anyone with standing) can enter a caveat at the Probate Registry. This prevents probate from being granted and allows time to investigate and prepare a claim.

After Probate is Granted

If probate has already been issued, it may be necessary to apply to revoke the grant. This is more complex and requires strong evidence that the will is invalid.

Potential Risks and Consequences

Challenging a will as an executor is not a step to be taken lightly. Risks include:

• Removal as Executor – If the court considers that the executor’s position is compromised, they may be removed and replaced.
• Costs Orders – If the challenge is unsuccessful, the executor may be ordered to pay legal costs personally, especially if the court considers the claim to be without merit.
• Damage to Family Relationships – Will disputes often arise between family members and can cause lasting divisions.

Alternatives to a Formal Challenge

In some cases, disputes can be resolved without formally contesting the will. Options include:

• Negotiated Settlement – Parties may agree to vary the distribution of the estate through a deed of variation.
• Mediation – This can provide a confidential forum to explore solutions without going to court.
• Seeking Directions from the Court – Executors who are unsure how to proceed can apply to the court for guidance, avoiding allegations of misconduct.

Time Limits for Contesting a Will

Different types of claims have different time limits. For example:

• A claim under the Inheritance (Provision for Family and Dependants) Act 1975 must usually be brought within six months of the grant of probate.
• Challenges to the validity of a will do not have a strict statutory time limit, but delays can make a claim harder to pursue and increase the risk of the estate being distributed before the dispute is resolved.

Prompt legal advice is therefore essential.

Practical Steps for Executors Considering a Challenge

If you are an executor who is concerned about a will and are considering a challenge, you should:

1. Seek specialist legal advice immediately – The dual role of executor and potential claimant needs careful handling.
2. Consider stepping aside temporarily – This avoids conflict of interest and ensures the estate can still be managed.
3. Gather evidence early – This might include medical records, witness statements, or previous versions of the will.
4. Weigh up costs and benefits – Consider the likely outcome against the potential costs and risks.

Preventing Problems in the First Place

The best way to avoid disputes is through careful estate planning. At Blackstone Solicitors, we recommend:

• Ensuring wills are professionally drafted and clearly reflect the testator’s wishes.
• Keeping clear records of discussions about the will.
• Considering the choice of executors carefully – appointing someone impartial may help avoid conflicts.

Conclusion

An executor can contest a will, but doing so presents unique challenges and requires careful navigation of both legal and practical issues. Executors must balance their personal interests with their duties to the estate and may need to step aside to avoid conflicts.

At Blackstone Solicitors, we advise both executors and beneficiaries across England and Wales on all aspects of will disputes. Whether you are considering a challenge or defending against one, our specialist team can guide you through the process, protecting your interests and working towards a fair resolution.

How we can help

We have a proven track-record of advising upon all aspects of private client work. We will guide you through the process and ensure all checks are carried out swiftly and efficiently and we firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting.

Deciding when (or whether) to incorporate, what kind of ownership

How to Contact Our Private Client Solicitors

It is important for you to be well informed about the issues and possible implications of an executor contesting a will. However, expert legal support is crucial in terms of ensuring a positive outcome to your case.

To speak to our Wills and Probate solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.

Authored by Ben Posted in Blog, News Tagged as

Comments are closed.