Stalemate in Contentious Probate

Delay in distribution of an estate 

We are often presented with a common problem.  A party has been appointed as an Executor in a Will and a family member has then entered a Caveat, which prevents the Executor’s application from proceeding.  That Caveat is then met with a Warning, which requires the party objecting to the ongoing application to enter an Appearance.

Once an Appearance is entered, a period of significant stalemate can occurs. 

What Should Happen Next?

The Executors need a Grant in order to administer the Estate.  There are two types of Grant available in this situation.

1.      The first is a Grant in common form;

2.      The second is a Grant in solemn form.

A Grant in common form is obtained where the Will is not being questioned or challenged in any way by any party.  That is what we would call the normal probate application process. 

A Grant in solemn form is different, as that is where the Grant is issued after the Executor (or any other person interested in the Will) has propounded it in a claim.

Propounding a Will means that rather than making an application to the Probate Registry for a Grant in common form using the normal application process, Court proceedings are commenced to obtain a Grant in solemn form.

The difference between the two also extends to the fact that the Grant in common form is revokable, whereas Grants in solemn form are irrevocable provided 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 set out below.

Where There is a Later Will

If after a Grant in solemn form has been obtained a later Will is discovered, then the Grant in solemn may be revoked in favour of the later Will.  That will require a separate application to the Probate Registry.

Fraud

The Grant in solemn form may be set aside if there have been proceedings of any type which led to a Judgment declaring that the Will was created by an act of fraud.

If a Grant in common form has been obtained and that is challenged, we say that the Will is invalid.  It is possible for all persons who have an interest, and whose interest is adversely affected by the issue of a Grant in common form, to be able to put the Personal Representatives of the Will to proof in solemn form by commencing a claim for revocation.

These types of applications are on the rise.  The issue leading to this is that more Grants are being obtained without contacting all relevant parties, and we are seeing a greater level of secrecy playing out in Estates.

The Caveat prevents a Grant in common form full stop, unless the party who entered the Caveat withdraws it, or unless it is successfully challenged. 

The application for a Grant in solemn form is an effective approach where there is an ongoing dispute.  Usually, the dispute is resolved in correspondence, by mediation or by other agreement.  If a stalemate has occurred, then more positive steps need to be taken by the Executors as they are under a duty to administer the Estate as expediently as possible in all of the circumstances.

If you are an Executor and you have concerns about a potentially contentious Estate, then we would urge you to take professional advice given the possible personal liability you can incur for maladministration.  Similarly, if you are a beneficiary or a claimant against an Estate and you are concerned that you will not receive your interest, or you are concerned that the Estate is not being handled correctly, then we would recommend that you speak to a Contentious Probate lawyer to seek advice on your entitlements. 

For more information, please contact Mohammed Hafiaz, Head of litigation or Niamh Mackenzie-Johnson, probate Solicitor.