Selecting an executor is a key part of organising your legal affairs. Therefore, it is important to understand their obligations and what steps you can take if you feel a loved one’s choice is not a true reflection of their wishes.
The role of an executor is to administer your assets and debts following your passing. This involves dealing with any property, paying debts, and distributing the net estate in line with your wishes (subject to the law of succession). Where you have prepared a Will, your executor will be nominated to carry out this task. It would often be expected that the executor carries out these duties for free, unless the Will provides otherwise.
It is important to appoint as your executor someone you trust, and close family members are often chosen. One would like to think that the appointment of a relative would improve confidence, although it can often be the reverse, particularly where the executor acts alone and / or is a major or unexpected beneficiary. Conflict of interest is both paralysing (as, by law, an executor can’t further his personal interest) and damages trust. It is recommended that when preparing a Will, you appoint at least three executors.
There are a number of reasons why a potential beneficiary might consider that the Will is not a true reflection of wishes. It might not have been signed by the now deceased individual. If it was, did they have mental capacity at the time? A vulnerable individual may have had their Will undermined by an overbearing or manipulative carer. That pressure might not amount to outright threat of force but can result in the court reducing (striking down) a Will. If that happens the previous Will revives, if there is one, otherwise a set of statutory default rules apply.
Taking advance action
An executor cannot distribute the estate until they have the court’s authority, called confirmation. If beneficiaries believe there to be invalidity, they must act before the executor has the opportunity to dissipate the estate.
They can enrol a caveat with the deceased’s home sheriff court which asks the court to notify the caveator if confirmation is sought. Once ‘triggered’, this gives the caveator the opportunity to inform the court that the grant of confirmation is challenged.
The court will set a hearing at which the caveator can state their case. However, where the basis of the challenge is invalidity, a court is still likely to grant confirmation if the Will appears valid on its face (i.e. it is signed, dated, and witnessed). For that reason, advice should be taken as soon as concerns take root, in order that a court action for reduction can be raised prior to confirmation. As part of the action, one could seek interim orders prohibiting the distribution of the estate.
The right to dispose of property as you wish is a fundamental freedom and a supposedly valid Will is a hard thing to overturn. Evidence from a handwriting expert will be required where one suspects a fraudulent Will. Medical evidence is required where mental capacity is challenged. Where something less than total incapacity is at play as much and as good evidence as you can collect will be required. In particular, date stamped photographs and video recordings can be invaluable in proving a person’s true wishes.
If you have questions about appointing executors, your role as an executor or wish to challenge a Will, it is important to seek professional advice as early as possible.
*This article originally featured in The Scotsman on 2 October 2023.