insideKENT Magazine Issue 35 - February 2015 | Page 152

LAW

REST IN PEACE?
The death of a loved one is a difficult time for any
family. Unfortunately, in many instances disagreements
between family members can exacerbate tensions and
can result in the family relationship breaking down.
Disagreements can be approached in a manner that
helps diffuse tension and avoid delay or expensive
Court proceedings. Philip Youdan, a Partner at Cripps,
explains some of the most common issues that arise
and how these can be managed.

Releasing the Will
Whilst it is natural for family
members to be interested in the
terms of the Will, sometimes the
person with custody seeks to keeps
it confidential.
In such circumstances, there are
steps that can be taken. A letter
from a solicitor will often secure the
release of a copy. Alternatively, if
the Will was prepared by a solicitor,
a 'Larke v Nugus' request can be
made to obtain a copy.
A more formal approach is to apply
to the Probate Registrar for a
subpoena requiring the person
holding the Will to lodge it.
If you are concerned about
protecting the Estate, you can apply
to the Probate Registry for a Caveat.
This prevents a Grant of Probate
and therefore provides a window
to encourage cooperation.
Alternatively, you can make a
Standing Search, under which the
Registry will release to you any
Grant of Probate along with a copy
of the Will.
Who can act as Executor?
Authority to collect and distribute
assets comes from a Grant of
Probate, where there is a Will, or a
Grant of Letters of Administration
where there is no Will.
Normally a Will names more than
one person as Executor, and
disagreements as to whether they
should all apply for the Grant can
occur. Sometimes, those named
may have a difficult relationship and
be unable to work together. A similar
situation can occur if more than one

person is entitled to apply for Letters
of Administration.
Alternatively, a beneficiary may be
unhappy with a particular individual
being appointed as Executor, even
though they themselves are not
entitled to apply. In such cases, a
practical way of proceeding is to
appoint a solicitor to act as an
independent Administrator. The
Court has the power to do so and
where it is clear, for example, that
those entitled to the Grant are unfit
or inappropriate persons to act or
have a conflict of interests in acting,
the Court will normally approve such
an application.

Phil Youdan

Claims against Executors
Executors owe duties to beneficiaries and, where their actions have resulted
in loss, action can be taken against them to seek compensation. Examples
of breaches by Executors that can result in liability include selling property
at an undervalue, using assets for their own benefit, and making incorrect
distributions.
In situations where there are such concerns, it is commonly the case that
the beneficiaries have also had problems obtaining information about the
Estate and how this has been managed.

The Court also has the power to
remove an Executor after his or her
appointment.

The Court does have the power to instigate inquiries or require the production
of accounts and inventories. This can be a very useful tool for ensuring
transparency and enabling disputes to be resolved.

Lifetime gifts
Disagreements often arise in
connection with pre-death
transactions, which have the effect
of reducing the Estate and can lead
to a perception of unfairness. These
gifts can be challenged.

When can a Will be disputed?
Disappointed beneficiaries may dispute the validity of a Will; for example,
they may believe that the person who made it did not have the required
mental capacity, did not have knowledge of the 6