An executor is often put in a difficult position when a person disputes the validity of a Will.
If the executor distributes the estate with knowledge of a dispute as to the validity of the Will he/she may be accused of acting in bad faith and therefore would not benefit from the usual protection afforded to an executor under Section 27(1) Administration of Estates Act 1925.
Executors often find themselves in a difficult situation where the person disputing the validity of a Will takes no steps to progress his or her claim. This often leaves the executors in a deadlock situation whereby they cannot administer the estate as to do so would mean that they would be acting in bad faith but at the same time they cannot fulfil their duty as an executor and administer the estate accordingly.
What can be done in circumstances whereby no steps are being taken to progress a claim?
Put up or shut up orders
The executors can apply to the Probate Registry for an order requiring the person disputing the Will to issue a claim by a certain date failing which the executors can continue to administer the estate. This is often referred to as a “put up or shut up order”.
This approach was considered by the Courts in the case of Cobden-Ramsay v Sutton. In this case a grant of probate had been issued. One of the deceased’s children argued that the Will was invalid as the deceased lacked the requisite mental capacity when making the Will. He was however reluctant to bring a claim.
It was decided by the Court that the child of the deceased would be given 28 days in which to bring a claim and if he did not bring a claim within this timeframe, the executors would be at liberty to distribute the estate according to the Will.
Comment
A put up or shut up order can be a helpful tool for an executor.
It is important to note that it will not technically prevent a claim from being brought later down the line (subject to limitation periods). It however will protect the executor from any liability if a person does successfully challenge the Will in the future.
Further, a Claimant who does not comply with the terms of a put up or shut up order but decides to issue a claim in the future is likely to face some resistance from the Courts and may be penalised when the question as to costs arises.
How can we help?
Ruby Ashby is an Associate in our expert Dispute Resolution team.
For any queries relating to the topics discussed in this article, please call Ruby or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or contact us via our online form.