There is a clear distinction between grants in common form and grants in solemn form. A grant in common form is a grant given when the validity of the Will is not being questioned or challenged. A grant in solemn form differs in that the grant is made after the executor or any person interested in the Will has propounded it in a claim. In addition, grants in common form are revocable, whereas grants in solemn form are irrevocable assuming notice has been given to all interested persons and the only two circumstances in which a grant in solemn form can be revoked do not apply. These two circumstances are as follows:
- If, subsequent to the issue of a grant in solemn form, a later Will is discovered, then the grant in solemn form may be revoked in favour of the later Will;
- A judgment that states a grant in solemn form can be set aside if the Will was created as a result of fraud.
A grant in solemn form is required where questions are raised by:
- The personal representatives;
- The personal representatives of an earlier Will;
- The beneficiaries or disappointed beneficiaries; or
- Those interested under an intestacy.
A personal representative may find that after a grant in common form has been obtained that someone has alleged that the Will proved is invalid. Where someone is seeking to prove a Will in solemn form, all persons whose interest is adversely affected by the issue of a grant in common form can put the personal representatives to proof of the Will in solemn form by commencing a claim for revocation. When a claim is being pursued, all persons interested will be parties to the claim. The Court will hear the evidence and based on this pronounce as to the validity of the Will. Where a claim is commenced and the challenge is successful, the original grant is revoked, however, should the challenge fail, the original grant, which was considered by the Court, is returned to the registry and will stand.
In many cases where a Will’s validity is being challenged, the executors will be aware of this early on. It is common for a caveat to be lodged and for the executors to be notified of the same when a Probate application is made as the caveat will prevent a grant in common form.
Whilst this can be a complicated process, a claim seeking to have a Will pronounced in solemn form can be an effective approach in a situation where there is an ongoing dispute in respect of the validity of a Will. Therefore, should you find yourself in a dispute over validity of a Will, it is important to seek legal advice and explore the options available to bring the dispute to a close and in turn allowing Probate to be granted and the deceased’s estate to be distributed.
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Faye Henderson is a Trainee Solicitor at Nelsons.
For further information on the subjects discussed in this article or any related topics, please contact a member of our Dispute Resolution team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.