Our expertise includes:
- Conflicts of interest and accusations of the improper administration of an estate by an executor;
- Disputes as to valuations for Legal Rights purposes;
- Disputes arising through intestate succession;
- Disagreements concerning the nomination and appointment of an Executor Dative;
- Challenges concerning the validity of a Will.
Executry Disputes
Death estates
Many death estates (executries/probate) are straightforward.
Executry disputes often occur where family relationships are strained and disputes arise as to who is entitled to what (e.g. assets or items of sentimental value) following the death of a loved one.
How to deal with executry disputes?
More-so than in any other area it’s important for legal advisers and their clients to keep cool heads when seeking to resolve disputes so that: matters do not disintegrate into a lengthy court battle, tax savings aren’t lost and division of the estate isn’t held up particularly for those depending on the distribution of the estate.
Executry Disputes
Proving the Tenor
When a Will is made, several decades may pass before it is required, during which time the original Will may have been misplaced.
If there is a copy of the signed Will then there is a court process that can allow the copy to be established or set up as equivalent to the original Will.
Anyone who has in interest in a missing Will, such as an executor, would typically be able to begin a court action for proving the tenor of the will.
The correct version of court action or application to the court requires to be raised seeking appropriate orders and that application must be served on all parties who have a relevant interest in the death estate, thereby allowing anyone with a potential interest to contend or support proceedings.
At a minimum, to ‘prove the tenor’ of the Will the pursuer must demonstrate three things to the court:
- That a Will exists and what the terms are;
- That it was validly signed; and
- The circumstances in which the Will came to be lost.
Where a court order for proving the tenor is granted, the extract court order is treated as being the equivalent of the Will itself and the estate administration can then proceed as normal.
Complications
As with many aspects of law, the circumstances of a misplaced original Will may not be as straight forward as satisfying the above conditions. For example, the Will might not be dated or witnessed or the solicitor firm that prepared the Will may no longer be trading.
Informal Wills
A more challenging situation arises where a document does not conform to the strict requirements of writing. In those circumstances a different type of court action requires to be raised to establish that the informal writing is the last testamentary deed of the deceased. Executors require to determine whether an informal writing constitutes a testamentary deed. Various obstacles relating to intention, meaning, signature, witnessing and, overall lack of formality require to be overcome for an applicant or applicants whose view it is that an informal writing has testamentary effect in proving that to a court.
