One of my clients is appointed as executor under the will of his deceased father but has expressed his disappointment and intention to challenge it. He has yet to obtain independent legal advise regarding his position as beneficiary. (I have told him numerous times that he needs to). He has now signed the probate papers in readiness for the application for the Grant to go ahead. I am concerned that he either doesn’t understand his responsibility as an executor or is intending on using his position to thwart the administration. He has a history of financial interference is his late fathers affairs. As the solicitor instructed on behalf of all the executors what should I advise him/them to do? I would rather not apply for probate given what I know but feel as I am instructed by all executors I have no choice. He would not renounce if asked.
Is the client seeking to challenge the validity of the will, or will he be making a claim under the Inheritance (Provision for Family and Dependents) Act 1975.
If the former, he will undermine his claim by proving the will as within the oath he confirms the validity of the will.
If the later, whilst he will be in a position of conflict, it is not insurmountable as other executors will be acting.
It seems to me the client must take independent legal advice, as his interests are at conflict with the duties of an executor.
I do not see that he should delay the probate application unless the other executors are comfortable with this, or he lodges a caveat (which would be an issue his independent solicitors might advise him on).
The issue is that he has signed the probate papers, but has not taken legal advice and, as such, there is concern that he does not appreciate the significance of this. As he has been told numerous times to take independent legal advice it seems to me that if all executors say for the probate application to go ahead, that is what should now happen.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals