Advice for a co-executor to issue a caveat?

[archiewoof]

In brief

Father's will.... 4 children are all beneficiaries (one considerably more than the other 3)....2 children are co-executors ( one of which is myself).

2 non execs previously expressed "concerns" about will to the other co-exec. (rather not say why at the moment) Now having the original will in my possession, I also have major concerns.

2nd co-exec has been very "awkward / aggressive" towards myself and the other beneficiaries and would not want the will to be challenged....other beneficiaries are fully supportive of me if I wish to challenge but would rather not be directly involved themselves at this time.

Spoke to solicitor who agrees there appears to be very good grounds to investigate the will but wants £££'s up front to proceed!

On the basis of being a co-exec, the person applying for probate and a beneficiary myself, in effect wearing two hats, I want to issue a caveat and more than happy / able try to deal with / investigate this up to the point where I feel I need to engage a solicitor but not 100% sure the best way to proceed?

Many thanks in advance for any advice forthcoming.

[des8]

Re: Advice for a co-executor to issue a caveat?

Hi and welcome

Why would you want to lodge a caveat?
The other executor can only apply for probate by themselves subject to giving notice of the application to yourself. You could the object to the application for a grant of probate.

If this is a concern about the validity of the will, bear in mind the consequences if it is found to be invalid.
If there is an unchallenged earlier will its terms will take effect, otherwise intestate rules will apply.

I'll ask [MENTION=85500]Peridot[/MENTION] to have a look for you

[archiewoof]

Re: Advice for a co-executor to issue a caveat?

Many thanks for your reply.

I am the lead executor and now hold the original will. What I would like to achieve is to justify my position of not applying for probate until our genuine concerns are fully investigated by me for which further information from various sources would be requested.

Having very recently dealt with our mother's affairs / will using a lasting power of attorney and excluding all others, the co-exec did everything in their power to convince / coerce me to agree to instruct the original drafting solicitor on this my father's will - without success.- neither were keen to relinquish control to me.

I just want to do everything out in the open in the correct and proper manner, cross T's, dot I's etc so nothing can be used against me at a later date but without actually revealing the whole context of our concerns / potential avenue of challenge until I am more certain of the facts that would be relied upon.

Consequences of will being found invalid, earlier take effect or intestate would be welcomed by 3 out of 4 of the beneficiaries....especially if it can be achieved without spending £000's if possible.

Apologies if this is a bit cryptic but I am acutely aware this is an open forum.

Hi and welcome

Why would you want to lodge a caveat?
The other executor can only apply for probate by themselves subject to giving notice of the application to yourself. You could the object to the application for a grant of probate.

If this is a concern about the validity of the will, bear in mind the consequences if it is found to be invalid.
If there is an unchallenged earlier will its terms will take effect, otherwise intestate rules will apply.

I'll ask @Peridot to have a look for you

[des8]

Re: Advice for a co-executor to issue a caveat?

If you are unsure or have any doubt whatsoever about the validity of the will you would be very well advised to delay any action
The potential liabilities if you make a mistake are not worth the risk.
Remember that probate gives you the authority to pay for professional advice.and you should do so if you have any doubts.

Hang on for a bit for [MENTION=85500]Peridot[/MENTION] to respond.
I know she is always busy, and this is a Bank Holiday weekend, so it may be a day or so.

[Peridot]

Re: Advice for a co-executor to issue a caveat?

Hi archiewoof,
As you say all very cryptic. Is it the validity of the Will or the division of the estate that you have issues with?
As Des8 said if you are a co-executor then the Grant can't be obtained without your confirmation that you are dealing or wish to have power reserved to you or you renounce. In addition the original Will is also required for the Grant, except in quite rare situations of which this isn't one.
What is the reason for not obtaining the Grant. Do you believe that the last Will is not valid? Or is it that the family (except the one person) would wish the estate to be divided more equally?
If the former is the reason then you will need to make further investigations into the Wills validity, requesting information from the person who prepared the Will if applicable and potentially from the witnesses who your father signed the Will in front of. If however the Will is valid you can't go against the wishes of the testator, unless all the beneficiaries agree. It may be possible to prepare a Deed of Variation provided all the beneficiaries agree.
I appreciate that you do not want to give too much information, however we do need a bit more than you have provided in order to point you in the right direction.
Can you confirm what your concerns are a bit further. Is it that you believe this is not your father's wishes, or that the Will was prepared incorrectly or is invalid for some other reason?

[archiewoof]

Re: Advice for a co-executor to issue a caveat?

Thanks for your reply

I hope this clarifies a bit further.

The challenge would be to the validity of the will due to a lack of testamentary capacity at the time of signing....

There are also potential issues around how the will was altered, who instructed and prepared it and any influence others may have had, so I intend on issuing (joint if possible) a Lark & Nugus request myself as co-exec...

The reason for the caveat in my mind would be more to perhaps register the concerns in an official capacity, let all beneficiaries know and possibly give the other co-exec time / jog to consider their position....possible deed of variation to make the will a bit "fairer" and more to what our father would have wanted and intended..

I have had initial legal advice and the view was there are excellent valid grounds for "legitimate concerns" however I am mindful of the need to try to avoid legal action / costs so intend to pursue / investigate the matter myself up to the point I definitely need costly legal representation.

Hi archiewoof,
As you say all very cryptic. Is it the validity of the Will or the division of the estate that you have issues with?
As Des8 said if you are a co-executor then the Grant can't be obtained without your confirmation that you are dealing or wish to have power reserved to you or you renounce. In addition the original Will is also required for the Grant, except in quite rare situations of which this isn't one.
What is the reason for not obtaining the Grant. Do you believe that the last Will is not valid? Or is it that the family (except the one person) would wish the estate to be divided more equally?
If the former is the reason then you will need to make further investigations into the Wills validity, requesting information from the person who prepared the Will if applicable and potentially from the witnesses who your father signed the Will in front of. If however the Will is valid you can't go against the wishes of the testator, unless all the beneficiaries agree. It may be possible to prepare a Deed of Variation provided all the beneficiaries agree.
I appreciate that you do not want to give too much information, however we do need a bit more than you have provided in order to point you in the right direction.
Can you confirm what your concerns are a bit further. Is it that you believe this is not your father's wishes, or that the Will was prepared incorrectly or is invalid for some other reason?

[Peridot]

Re: Advice for a co-executor to issue a caveat?

Hi again,
So who applied for the caveat?

[archiewoof]

Re: Advice for a co-executor to issue a caveat?

Myself if I can? Sorry I thought that was clear in previous posts.

[Peridot]

Re: Advice for a co-executor to issue a caveat?

Hi,
A caveat would prevent the Grant of Probate being issued, so would allow a person the time to 'investigate' prior to bringing any claim against the estate. Anyone can apply for a caveat. However, as the executor, the Grant can't be obtained until you apply for it, so I can't see why this would be necessary and it would not be known to the other executor until the Grant was applied for.

All executors named are co-executors and all would have to be involved in the application for the Grant, unless they had power reserved to them or renounced their position at the outset. There is no such thing as a lead executor. As the executors you also have a duty to the beneficiaries, in addition to dealing with the estate.

You need to start gathering evidence to then reassess what the likelihood of succeeding in any claim may be. You believe there was an issue with your father's testamentary capacity when he prepared the Will. You mentioned a Larke v Negus request to the firm who created the Will and I would suggest this is a sensible starting point for you. You will also need your father's medical records. You mentioned your co-executor had a lasting power of attorney for your father, was this just to help out as and when your father asked for help or was it due to his loss of mental capacity to deal with things himself. When was the last will prepared, after the LPA was registered?

Another avenue may be to contact the witnesses to the Will signing if available. They may recall things about the signing and whether they believed your father knew what he was signing at the time? They could of course provide an affidavit confirming your father appeared to understand exactly what he was doing at the time.

If you are able to gather as much information as you can, this will of course reduce the amount of work and time any lawyer would need to do, so hopefully reduce any fees a bit. Once you have obtained the information, I would see the lawyer again and see how they view the evidence, before discussing it further with the beneficiaries. The beneficiaries should be made aware of the estimated costs of bringing the claim as their legacies will of course be affected by any reduction in the estate value if the costs of any application and subsequent proceedings were to be taken from the estate. It is difficult wearing the 2 hats of executor and beneficiary, but you must perform your duties as the executor and dealing with the validity of the Will is of course part of that.

You should be aware that even if your father was suffering capacity issues this does not mean in itself that he lacked capacity when he gave instructions for the Will and subsequently signed it. If you believe there has been undue influence exerted on your father, then this can be very difficult to prove. It is for the person making the claim to show the undue influence. If a lawyer prepared the Will then there should be detailed attendance notes dealing with any capacity issue and also documenting who was present etc. even if they did not obtain a medical report. I am concerned regarding the amendments that you mention, which may be invalid in any event.

A lawyer will not do anything without money on account, but you may be able to see someone else for a free half hour or reduced fee.
Claims are expensive as I have already mentioned. Even if you were successful in any claim the most recent Will before this one would not necessarily take effect.

Do you have the previous Will? An option would be for the older Will to be propounded by a citation, if it is believed that the latest Will is invalid. The executors would apply to the Probate Registry for this. However this of course would need both the executors to agree to this course of action. It may be worth considering this once you have sought advice on the likelihood of succeeding in any claim and the likely costs of the same and how this will affect all beneficiaries legacies.

Of course, if any claim were successful and there was no previous Will used then the intestacy rules would have to be followed. This may not give the result you would hope for?

Another option would be to have all the residuary beneficiaries agree to vary the Will by Deed. Although this sounds like something the other exec would not be willing to consider, assuming they are receiving the larger proportion of the estate?

There is nothing to stop you issuing a caveat if it makes you feel more secure in taking actions to 'investigate' further, but no-one will be aware of this until the Grant is applied for.

Do pop back if we can clarify anything for you further.

[archiewoof]

Re: Advice for a co-executor to issue a caveat?

Many thanks for taking the time to write such a detailed response it really is appreciated and helps greatly.

I shan't respond in detail now except to state the following:

I intend to write to the other exec and inform them of the caveat and ask for their agreement to request a joint Larke & Negus initially and maybe medical records also.

Not 100% when LPA was obtained but it was due to father's lack of mental capacity (dementia).

One witness was a solicitor from the drafting company who attended father's home due to his health and other was an elderly former neighbour (now in a care home I believe). As I understand it instructions were given over the phone by a 3rd party and the solicitor "popped in" with amended will to sign as a witness.

I have not seen the previous will but informed it was equal 4 way split so would be same as intestate I would say....hence if the other exec is made aware of caveat they may wish to consider their position re a deed of variation (compromise perhaps) rather contesting and losing far more potentially in legal costs as well as the time it would take.

Once again massive thanks for the time you have taken to reply.

Hi,
A caveat would prevent the Grant of Probate being issued, so would allow a person the time to 'investigate' prior to bringing any claim against the estate. Anyone can apply for a caveat. However, as the executor, the Grant can't be obtained until you apply for it, so I can't see why this would be necessary and it would not be known to the other executor until the Grant was applied for.

All executors named are co-executors and all would have to be involved in the application for the Grant, unless they had power reserved to them or renounced their position at the outset. There is no such thing as a lead executor. As the executors you also have a duty to the beneficiaries, in addition to dealing with the estate.

You need to start gathering evidence to then reassess what the likelihood of succeeding in any claim may be. You believe there was an issue with your father's testamentary capacity when he prepared the Will. You mentioned a Larke v Negus request to the firm who created the Will and I would suggest this is a sensible starting point for you. You will also need your father's medical records. You mentioned your co-executor had a lasting power of attorney for your father, was this just to help out as and when your father asked for help or was it due to his loss of mental capacity to deal with things himself. When was the last will prepared, after the LPA was registered?

Another avenue may be to contact the witnesses to the Will signing if available. They may recall things about the signing and whether they believed your father knew what he was signing at the time? They could of course provide an affidavit confirming your father appeared to understand exactly what he was doing at the time.

If you are able to gather as much information as you can, this will of course reduce the amount of work and time any lawyer would need to do, so hopefully reduce any fees a bit. Once you have obtained the information, I would see the lawyer again and see how they view the evidence, before discussing it further with the beneficiaries. The beneficiaries should be made aware of the estimated costs of bringing the claim as their legacies will of course be affected by any reduction in the estate value if the costs of any application and subsequent proceedings were to be taken from the estate. It is difficult wearing the 2 hats of executor and beneficiary, but you must perform your duties as the executor and dealing with the validity of the Will is of course part of that.

You should be aware that even if your father was suffering capacity issues this does not mean in itself that he lacked capacity when he gave instructions for the Will and subsequently signed it. If you believe there has been undue influence exerted on your father, then this can be very difficult to prove. It is for the person making the claim to show the undue influence. If a lawyer prepared the Will then there should be detailed attendance notes dealing with any capacity issue and also documenting who was present etc. even if they did not obtain a medical report. I am concerned regarding the amendments that you mention, which may be invalid in any event.

A lawyer will not do anything without money on account, but you may be able to see someone else for a free half hour or reduced fee.
Claims are expensive as I have already mentioned. Even if you were successful in any claim the most recent Will before this one would not necessarily take effect.

Do you have the previous Will? An option would be for the older Will to be propounded by a citation, if it is believed that the latest Will is invalid. The executors would apply to the Probate Registry for this. However this of course would need both the executors to agree to this course of action. It may be worth considering this once you have sought advice on the likelihood of succeeding in any claim and the likely costs of the same and how this will affect all beneficiaries legacies.

Of course, if any claim were successful and there was no previous Will used then the intestacy rules would have to be followed. This may not give the result you would hope for?

Another option would be to have all the residuary beneficiaries agree to vary the Will by Deed. Although this sounds like something the other exec would not be willing to consider, assuming they are receiving the larger proportion of the estate?

There is nothing to stop you issuing a caveat if it makes you feel more secure in taking actions to 'investigate' further, but no-one will be aware of this until the Grant is applied for.

Do pop back if we can clarify anything for you further.

[Peridot]

Re: Advice for a co-executor to issue a caveat?

Hi,
As an aside, although I'm sure you know anyway, you don't need the other executor's consent to make a Larke v Negus request, if they were to get mardy about it.
Probably wise to keep them in the loop so they are aware there is a potential issue here and may be food for thought for them. Hopefully everyone can be reasonable and reach a compromise rather than having to call out the cavalry so to speak..

[archiewoof]

Re: Advice for a co-executor to issue a caveat?

I am working on the assumption that if co-exec is of the opinion the amended will is 100% valid then there would be no reason not to co-operate and agree a joint investigation in order to allay the 3 other beneficiaries concerns....If they are not so confident then perhaps, having "food for thought" they may voluntarily wish to even things up a bit by a deed of variation...which I already know to be the preferred route of the other beneficiaries.

Hi,
As an aside, although I'm sure you know anyway, you don't need the other executor's consent to make a Larke v Negus request, if they were to get mardy about it.
Probably wise to keep them in the loop so they are aware there is a potential issue here and may be food for thought for them. Hopefully everyone can be reasonable and reach a compromise rather than having to call out the cavalry so to speak..

[archiewoof]

Re: Advice for a co-executor to issue a caveat?

"administration of the estate to date"

[archiewoof]

Re: Advice for a co-executor to issue a caveat?

Co-exec signed and agreed to joint L&N request which was duly sent to the drafting soilictors.

Got a 3 page reply today stating "their client" the other co-exec???? had concerns about my administration of the estate to date and 90% of the letter related to this by way of lots of spurious comments.

Only 1 paragraph refers to our L & N request (thought not by that name) they state "no evidence to suggest capacity at the relevant time" They then demand a "detailed explanation" of my concerns.....their client cannot be expected to wait for me to consider and review those concerns"

They then go off in full waffle mode about the estate admin again before finalising the letter with 1)requesting a schedule of assets 2) Progress on probate summary.

Followed by a warning about potential allocation of legal costs and suggestion to instruct a solicitor to ease administration.

I see this as a complete deflection attempt to my L & N request but am somewhat surprised they are now acting for the co-exec.

All comments ,advice or suggestions welcomed

[Peridot]

Re: Advice for a co-executor to issue a caveat?

Hi,
It is somewhat strange the co-exec has instructed them without reference to you to deal with the Probate when they had agreed to a Larke v Negus request??
I would reiterate the request for the copy of the will file and confirm that until you are able to be assured the Will is valid you are unable to proceed with obtaining the Grant.

Of course if all other beneficiaries are in agreement then the once probate has been obtained then a Deed of Variation could be prepared? I think you really should get some advice from a lawyer regarding this. It does seem to be heading toward litigation of some sort and that may not be necessary.