Can An Executor Dispute The Validity Of A Will?

A Will may be disputed either because it is invalid, provisions of the Will have failed, are invalid, or should have been constructed in a particular way. If you have an interest in the estate, you can pursue a claim. You may be an executor or potential beneficiary. You do not have to be named in the Will to dispute the validity, but you must have an interest in the estate.

As an executor, you have a duty to act in the best interest of the estate in which you are appointed. You are not obliged to act under a Will you believe to be invalid. If you have doubts about the validity of a Will, you are unlikely to seek the Will to be pronounced valid. If, as an executor, you fail to undertake an action where required in respect of a Will, you may be made personally liable for the costs of the proceedings that follow as a result of your failure. This is, however, unless you are held to have acted reasonably by doing or not doing something.

Where a dispute in relation to the validity of an estate arises and is pursued by a third party with a potential interest in the estate, executors will be joined as a party to the dispute. You will not be required to be involved in the dispute taking place, but may be required to disclose information and documentation if it relates to the validity of the Will and the issues in dispute. If an executor does not remain neutral as a third party added to the dispute, you may become personally liable for legal costs.

It may be that, after a grant of probate is obtained, you are uncertain about the validity, or there is an active dispute; you can and should seek directions from the Court if the position is unclear.

The reason for the dispute and at what time it arises will require different actions and applications to be made.

Comment

If you are an executor and consider that a Will may not be valid or drafted correctly, you should seek independent legal advice to consider the options that may be taken to resolve the issue and protect your position both personally and as an executor.