I am seeking to obtain a grant in an estate on behalf of a client whose husband died over 10 years ago. Probate was never obtained, as it was felt unnecessary. However, the house is still in his sole name and she would like to get this transferred into her name - better late than never!
The Will says ‘I appoint my wife X to be the sole executrix…but if she is unable or unwilling to prove my Will before the expiration of 3 months after my death then I appoint Y…’
I am working on the basis that her failure to obtain the grant within 3 months is not an ‘unwillingness’ to prove the Will. However, what do others think? More importantly, what will the probate registry think?
As an aside, it seems a peculiar way of appointing executors. If a clear-thinking and willing executor fails to prove the Will within three months despite their best efforts (perfectly possible!), can that power then be taken away?
As “unwilling” also means “reluctant”, the 10 year gap between death and the widow now wishing to prove the will would, to my mind, suggest a reluctance to prove it in the meantime (for whatever practical reason).
In anticipation that the widow is also the sole residuary beneficiary, might Y renounce their right to probate and the widow, or her attorney, apply for a grant as residuary legatee?
Alternatively, mindful of the unusual nature of the appointment clause, you might see if the Probate Registry would be willing to agree the basis upon which the widow could obtain a grant.
With regard to the terms of the appointment clause, at what point is a will “proved”? Is it when the application for a grant is made, when the Probate Registry agrees to issue a grant, or when the grant is issued. If either of the latter, whilst an application might be made within the 3 month period, if there are any delays in reaching the relevant stage the applying executor’s right to a grant may expire before it can be “proved”. Whilst such a clause might be used to avoid an estate languishing unadministered, the initial named executor needs to be given a reasonable time to make the necessary enquiries, etc. However if, as in this case, the alternative executor also takes no action, it seems to me any benefit of the further provisions are not only lost but provide another layer of potential complication. Not a clause I think would often be recommended.