Defendants In Capacity Cases

Trusts Discussion
1

I am 1 of 2 professional Executors acting under a Grant of Probate in respect of a Will that was prepared by colleagues in my Practice. There has been an allegation that at the time that the Testator did not have mental capacity. A Larke-v Nugus statement has been prepared and served, medical and care home records are being obtained

If this does not resolve the matter and proceedings are issued by the disappointed beneficiaries of the previous Will i am trying to resolve in my own mind who the defendants would be and what role should they take.

Is it the Executors - generally the appointed Executors adopt a neutral role in proceedings, is it the LLP that prepared the Will who would be the Defendants or would it be both - with the Executors merely deposing as to the assets with the LLP resisting the claim on the basis that its Fee Earners were satisfied that the Testator had capacity .

II would also anticipate that the Professional Insures would become involved but I am keen to ubderstand who would be a party and their position they should adopt

2

I would see the applicants as the beneficiaries under the earlier will alleging a lack of capacity and the defendants as the beneficiaries under the latest will, perhaps with the named executors as co-defendants. The LLP would be involved merely to provide evidence of the circumstances of the preparation and execution of the latest will. I would not see either the LLP or the named executors looking to defend the claim, although those who were involved in the drafting might be concerned to protect their reputation.

If the allegation of lack of capacity is not withdrawn, and those who have raised the allegation do not seek to challenge the latest will, the advice of counsel may well be appropriate to identify the most appropriate way forward, so that the estate is not in limbo for a long time (subject to carrying the insurers with any proposal).

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals