If the Will is lost, a grant of probate may still be made on a lost (copy) Will with an application to the Supreme Court.
You can oppose that order being made if you believe the Will was destroyed by the deceased intentionally revoking it.
If the Will is damaged?
Although small issues such as paperclip marks, a Will that has been re-stapled or small imperfections can be easily explained, they will need to be explained in detail before a grant of Probate is issued.
Additional marks made by the deceased on the Will after it had been signed may require an order from the Supreme Court to allow the grant to be made.
Damage to the Will may be so great that the Supreme Court will assume that it was intended to be revoked by the deceased. Evidence will be required to rebut that presumption and obtain a grant of Probate on that Will.
Has the Will been completed properly?
A Will must be signed in accordance with the Wills Act 1936.
Signed by the deceased in the presence of 2 or more witnesses present at the same time.
The deceased must have intended the document to constitute their Will.
If it is not complete, then questions will arise as to whether the document is a Will at all. An application to the Supreme Court may be required to obtain the grant of Probate.
Is it clear?
Sometimes the description, or the position of appointment, of an executor is not clear.
Legal advice is required to ensure the correct executors are obtaining the grant and on occasions, where true uncertainty exists, an application to the Supreme Court is required for advice and directions as to who may be entitled to obtain the grant of Probate.
Conflict between executors?
Where more than 1 executor is appointed, all are entitled to act. Unless the Will specifies it, executors do not act as a majority.
If conflict exists between named executors significant delay and financial loss may arise in addition to the additional stress it will cause.
A sensible resolution to the conflict without the need to file Court proceedings is always preferred. Objective negotiation and third party mediation are always suggested at first instance.
If conflict continues, an application to the Supreme Court can be made seeking guidance, directions and, in some instances, orders to pass over a named executor to ensure further financial wastage does not occur to the estate.
What if the executor dies?
Does the Will appoint another executor in substitution to the now deceased executor?
Is another grant of Probate required for the substituted or subsequently named executor?
What if a named executor is incapacitated?
If the Will permits another executor in substitution the incapacitated executor may be passed over and a grant of Probate made to the executor appointed in lower priority.
If the Will does not permit another executor in substitution the Supreme Court is required for another to apply for, and receive, a grant of Probate.
Would all beneficiaries agree with this action? Does the Public Trustee have to be involved?
Some Wills contain very complicated and lengthy terms such as life interests and testamentary trusts.
Executors need to ensure they not only abide by law when administering the estate but adhere strictly to the obligations and powers granted to them by the Will itself.
Scandalous and Offensive Terms.
On occasions Wills contain clauses or terms that may be considered offensive or scandalous.
When a Will is admitted to Probate it becomes a public document and as such offensive and scandalous terms and references need to be avoided.
An application to the Supreme Court can result in such terms or words being deleted from a Will so as not to cause offence.
A document must only comply with the minimal conditions set out in the Wills Act to be considered a legal Will. The requirements are not difficult to achieve.
It is true, something written on the back of the proverbial corn flakes packet might be considered a valid Will.
The issues with Will Kits arise after the person who wrote it has died and their family or loved ones are attempting to administer their estate. Problems might arise which can often lead to delays in administering or finalising an estate and also lead to additional expense in trying to rectify or resolve the issues that arise.
What kind of issues are there with Home Made Will Kits?
Some issues that arise:
The executor nominated has since died and there is no substituted executor named;
The testator gifts a specific bank account to someone but at the time of their death they had changed banks leading to the gift failing;
The testator not having disposed of their entire estate leading to a partial intestacy (distribution according to legislation set out by Parliament);
The document not being signed correctly (or at all) and not being dated correctly (or at all);
The names of executors or beneficiaries being incomplete or incorrect leading to confusion;
Conditions being placed on certain gifts (…”X can have the car but only if he leaves that wife of his that I hate”…) which are either offensive, against public policy or impossible to meet or enforce;
A testator wishing to gift property which they own jointly with another, that property never falls into their estate and was never capable of being gifted;
The Will being revoked by marriage resulting in a distribution the testator did not want.
What are Urgent Applications?
Sometimes a grant is required quickly. Certain applications can be made to obtain a limited grant of Probate.
Perhaps the deceased entered into a contract for sale of property and died before settlement, legally the contract is enforceable and if settlement does not occur the estate may be sued for losses that result.
An urgent grant of Probate may be obtained to allow the sale to occur, but no more.
Perhaps an asset is of such a nature that it may perish or loose substantial value if not sold or dealt with immediately. An urgent grant of Probate may be obtained to allow the sale or disposition of that asset which will ultimately benefit the beneficiaries of the estate.
Do you need a grant in ALL circumstances?
Whether a grant of Probate is necessary will depend on the nature and extent of the assets of the estate. For example, a bank holding money belonging to the deceased will need to know who it should be paid to. The grant is proof that the person named (executor or administrator) is the person entitled to collect the money on behalf of the estate.
A grant of Probate will be required if the deceased owned a house in their own name or held an interest with another party as tenant in common. Real estate owned by the deceased as a joint tenant with another person cannot, and will not, form part of the deceased estate.
If there are minimal funds in a bank account and no other significant assets it is possible to administer the estate without a grant of Probate.
The executors nominated in the Will are still acting in that capacity but some expense and delay can be saved