Case Study - Removal of an Executor

We acted for the brother (‘B’) of the Deceased (‘D’). D had no children, he had one brother, and was married to (‘S’). A short time after D and S married, D made a Will leaving D’s entire Estate to B and leaving nothing to S. D and S were estranged and had not been in contact for several years. Following their separation S had moved to reside in another city and was no longer in contact with D or D’s family. The last contact that D or D’s family had with S they understood that S had commenced a new relationship with another partner.

Sadly, D died. B took steps to collate the Estate information for the purposes of applying for a Grant of Probate in accordance with Will. Whilst B took these steps, S made an application for and obtained a Grant of Letters on the basis that S was the surviving spouse and that there was no Will.

We were instructed to take steps to remove S as a personal representative, to revoke the Grant obtained in favour of S and apply for and obtain a Grant on behalf of B.

Challenges

The challenges to be addressed included:

1. Being able to provide sufficient evidence to S that the Will was made following the wedding, the Will was valid, and that S did not have grounds to apply for a Grant.

2. Acting quickly to stop S collecting in the Estate Assets and taking steps to administer the Estate.

3. Ensuring that B obtained a Grant and could take steps to deal with the Estate Administration.

Solutions

1. Providing the legal basis for our client’s position

We obtained the relevant documentation and evidence required in order to make an application. This included obtaining details of the marriage/ wedding ceremony which took place outside of the UK and ensuring that the requirements for the ceremony were met in accordance with the religion that the ceremony was being performed under. We also had to obtain additional information regarding the making and signing of the Will – S was unaware that the Will was made and so took issue with the existence and validity of the Will. Once all of the relevant information have been retrieved and reviewed and we put forward the evidence to S in a substantive letter.

2. Negotiating application by way of consent

Our correspondence set out our client’s position and invited S to consent to the proposed application – this would be beneficial to all parties involved to try and preserve time and costs. However, if consent was not obtained the application would have been issued in any event. S was represented and it was agreed between the parties that the application should be made by way of consent.

Impact

The application was successfully made and the Grant in favour of S was revoked with a Grant in favour of our client, B, being issued. This allowed B to start taking steps to collect in the assets in the Estate and deal with the Estate Administration.

Reaching such an agreement has had a huge impact on B’s life, as he is now able to properly grieve the loss of D, and can administer the Estate in the way he chooses to without the stress of continuing litigation and potentially bringing the claim to Court.