Can an Executor Challenge a Will?

When someone dies, the executor named in their Will is responsible for administering the estate and giving effect to the deceased’s wishes. But what happens if that same executor has concerns about the Will’s validity?

This article by Contentious Trusts & Probate Partner Vlad Macdonald-Munteanu, explains when an executor may be able to challenge a Will, what they should do if they suspect forgery, fraud, undue influence or lack of capacity, and the risks of taking action without first obtaining specialist legal advice.

Can an executor challenge a Will?

Yes, albeit not in their capacity as an executor, as challenging the validity of a will would conflict with their executorship role and responsibilities. An executor ought to first renounce their role, before commencing a will challenge. The same principle applies where an executor is also named as a beneficiary.

Executors who are unsure whether there are valid grounds for contesting a Will should take specialist advice before taking any step that could conflict with their duties.

What are the options if an executor believes a Will is invalid?

If an executor believes that a will is invalid, generally, it is safer to step away from their role as an executor and separately pursue a will challenge. However, if they are unsure about the validity of a will, as an executor, you can request the will making file and medical records.

These are two of the primary sources of contemporaneous evidence which normally provide an early indication if there are likely to be grounds for a will challenge. It would be good practice to then share this information with the interested parties.

Where the concern relates to capacity, undue influence, fraud or formal validity, our guide to how to challenge a Will explains the wider grounds that may be available.

What duties does an executor have if a Will is being disputed by someone else?

An executor has a duty to propound the will they are named in, assuming it is the last known will of the deceased. 

However, if a serious dispute as to the validity of the will is raised, by a beneficiary under the earlier will(s), then an executor ought to pause any action to propound the last will. Their main concerns ought to be the safeguarding of the estate, while the beneficiaries seek to resolve their dispute.

For example, a limited grant could be obtained to collect assets in and meet liabilities, even where there is a caveat in place. An executor also ought to assist the parties and provide any reasonable disclosure sought, or agreed, between the parties.

Assuming they are served with a probate claim, the sensible approach is to indicate they will abide by any decision the court makes, increasing the prospects of retaining their indemnity for costs from the estate, even if the will they are appointed under, is later held to be invalid.

Executors who are not challenging the Will may still need separate estate administration and probate advice to ensure the estate is dealt with properly.

How does an executor raise concerns about forgery, fraud, or undue influence?

Much will ultimately turn on the quality of the evidence that they have in their possession or knowledge of the facts. The stronger the evidence, the easier it will be for an executor to share the information with the beneficiaries and beneficiaries under an earlier will.

If an executor is relying on their first hand information, it ought to be set out in a concise witness statement, limited to neutrally setting out the facts (and not their opinions). While that may cause tension with any beneficiaries who do not wish to see the suspect will challenged, adopting a constructive stance will invariably assist.

In any event, the line between setting out first hand knowledge and challenging a will can blur, which is why seeking early legal advice is sensible.

What risks does an executor face when contesting a Will?

If an executor were to remain in post, i.e. not renounce / or be replaced, and they pursue a will challenge, they would likely be removed from their role as an executor. If they defended such a claim, it is likely that the defence would fail.

Adopting a partisan stance in pursuing a will challenge would likely mean they lose their indemnity for costs from the estate, exposing themselves to a personal costs liability. An analogy can be drawn to the decision in Griffin v Higgs [2018] EWHC 2498 (Ch) where the court did not order costs against the executors, for the period they adopted a neutral stance and accepted the validity of the will.

For the remaining periods where they were not held to be neutral, costs were ordered against them.

If an executor remains in post despite a conflict of interest, the court may be asked to consider removing an executor where that is necessary to protect the estate.

Does the executor’s role change if a Will is successfully challenged?

It depends on who is appointed under the earlier will that is proved. For example, if the executors are one and the same under both wills, their role does not change, beyond having to administer the estate in accordance with the earlier will.

However, where the executors under the earlier will differ, then as along as the outgoing executors have acted reasonably and in the interests of the estate, then they should retain their indemnity and recover their costs from the estate.

When should an executor seek legal advice about challenging a Will?

As soon as possible, for a simple reason: should they commence administering an estate, for example, by collecting in assets or paying or waiving debts, before deciding to challenge the validity of the will (in a differing capacity) they would likely to be deemed to have intermeddled.

Intermeddling means taking on the office of an executor, such that they can no longer simply renounce. Instead, they would need to issue an application to the court to seek their removal/replacement, which would invariably delay the estate administration (and potentially any probate claim) as well as increase costs.

Those costs could fall on the out going executor(s), if they did not behave reasonably.

Can an executor challenge part of a Will?

The circumstances giving rise to an executor seeking to challenge part of a will rarely arise. Of course, if the testator told an executor of their intention regarding a specific gift or legacy in their will, whose corresponding clause in the will does not achieve that intention, then an executor may wish to review the will making file.

It may be that a certain clause could be liable to rectified to give effect to the testator’s intentions, if the will writer has made a mistake or clerical error. 

Technically, the executor would not be challenging the will, but seeking to rectify a certain clause, assuming the evidence supported such a claim and normally, if the beneficiaries agreed.