Hi
This is a practical question which hopefully just needs a simple answer.
We are holding a will which appointed two siblings as executors. They do not get on. We have been provided with information by one sibling about potential issues carried out by the other both during the lifetime of the deceased and afterwards (the deceased died in November 2024).
The other sibling is refusing to liaise with us in relation to providing any ID and only wishes for us to liaise with a third party (not a legal advisor).
I feel that due to the information provided we are effectively conflicted so will not act in any capacity. However, we hold a valid Will which needs to be administered.
I believe the correct course of action is to send the Will to court for them to hold until matters have been resolved.
Which Court though?
My initial thought was the Probate Registry but sending it to Harlow fills me with dread and I doubt they will know what to do with it. Newcastle would just get put in a pile and forgotten about.
s123 Supreme Courts Act 1981 suggests it should be the High Court, but would that actually apply and would that just be our ‘local’ High Court?
As one executor has authority to act on his own for most decisions (contrary to what many believe), I would be tempted to give the will to the first executor who asked for it. My view is s.123 is designed for situations where the court wants to inspect the will for the purpose of determining questions as to its validity. It is not designed to take a valid will away from executors who cannot agree regarding which executor is to take possession of the will. I also note the strangeness of applying for a subpoena against yourself to bring in a will. If you are not happy with this proposal, you could apply, or inform the executors that they should apply, under CPR 64 to the court to determine to whom the court should order the will be provided. If you are inclined to try use s.123, my view is any district registry is suitable as the district registries art part of a single High Court, rather than being their own entity. Likewise, the probate registries are part of the Family Division of the High Court.
In these situations, my view has been to lodge the will with the Principal Probate Registry and advise the executors of what has been done. It is then for the executors to show the Registry who should obtain probate (if any of them).
It also avoids the person holding the will from getting caught up in the infighting between the executors, which could be time consuming and costly (for the firm).
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing advice and support to fellow professionals
Lobbing this out as a thought. If the active executor makes an online application and sends you the reference could you then send the original to Harlow with the reference?
I wholeheartedly agree with Paul on this one. It removes any responsibility for you or the firm to ensure that the Will goes to the right person and or being stuck between waring executors. Anyone applying would have to satisfy the Probate Registry that they are entitled to the grant.