If you have been notified about a challenge to a will relating to an estate in which you have an interest, you may wonder whether you can defend the contested will.
To begin with, it is important to understand that there are two key roles or positions in relation to a person’s will.
What is an executor?
An executor is the person who is authorised and appointed to deal with the estate. That is known as administering the estate.
It falls to an executor:
to work out what assets and liabilities there are in the estate,
to value them,
to apply for a grant of representation,
to collect in (i.e. sell or realise) the assets,
to pay off the liabilities, and
to then distribute (i.e. pay out) the money to the named beneficiaries.
They are, essentially, in charge of sorting the estate out and owe duties to the named beneficiaries.
What is a beneficiary?
A beneficiary is a person who stands to benefit from the estate.
Usually, a person would either receive a specific gift, whether that be a set sum of money (e.g. “I give my son, Phillip, the sum of £10,000”) or a particular asset (e.g. “I leave my wedding ring to my daughter, Sarah”). They would then be known as a “legatee”.
Alternatively, a person would be left a share of the estate after any specific gifts have been made, known as the “residuary estate”.
Can a person be both?
Very often, a person can be named in a will as both an executor and also a beneficiary. However, in relation to a challenge to a will or any sort of claim against an estate, it is important to remember that the roles are separate and distinctive.
Responding to a claim
In relation to any sort of dispute such as a challenge to a will or a claim for reasonable provision, an executor would usually remain neutral.
Provided they do so, and focus purely on administering the estate, then any costs they incur in doing so would always be payable from the estate, regardless of the outcome of the dispute.
However, as will be appreciated, the beneficiary is a person who may well be adversely affected if a challenge to a will or a claim against the estate is successful. Perhaps they don’t benefit under an earlier will or the rules of intestacy, or maybe they will see their share of the estate reduced if provision is made to someone else.
Accordingly, it is open for a beneficiary to defend and oppose a claim.
If they do so, then they will assume the usual costs risks that are involved in litigation. That is to say that the usual costs position is that “the loser pays the winner’s costs”.
What should I do?
Upon being notified of a challenge to a will or a claim against the estate, the first step is to seek legal advice from a solicitor. It is important to ensure that you are fully advised on what your position is and how best to approach the matter.
As an executor, the focus will be on protecting you and ensuring that any costs you incur in carrying out your role are recoverable from the estate.
As a beneficiary, before assuming the usual costs risks, the focus will be on assessing the merits of the intimated challenge or claim before deciding whether there is value in defending the same and the prospects of success in doing so.
We are here for you
If you wish to contest a will, you have been notified of someone wanting to contest a will that you are either dealing with or benefit from, then please contact our Contested Wills, Trusts and Estates Team on 01823 625841.
We handle a variety of disputes and issues surrounding wills and estates. Further, we are able to offer high quality, cost-effective legal advice on such matters, with flexible funding arrangements such as Conditional Fee Agreements (i.e. No-Win, No-Fee arrangements) also being available.