Contentious Probate

 

When was the last time you read from the newspaper that members of a family dispute the validity of a deceased parent’s will or accuse those administering a deceased relative’s estate of ‘maladministration’?

 

This might not be a very pleasant topic for oneself but it just happens far too often.

 

Probate Action 

 

When a person died with a will, the executors named under his will would apply to the Court for grant of probate in respect of the deceased’s estate under his will. But what if a person claiming to be in possession of another will of the deceased or a family member wishes to challenge the validity of the will or one of the wills? In this type of cases, the ‘challenger’ will have to commence a contentious probate action for the determination of issues in dispute.

 

The validity of a will is usually challenged on the following grounds:-

 

  • The will was not duly executed, or it was forged or revoked.
  • The deceased did not have testamentary capacity at the time of execution.
  • The execution of the will was procured under undue influence or fraud.
  • The deceased did not know and approve of the contents of the will.

 

Before the institution of contentious action, the ‘challenger’ will usually enter a caveat (i.e. a warning) in the Probate Registry first to prevent the issue of a grant of probate without notice to him. The commencement of a probate action also works to prevent the sealing of a grant.

 

In general, all persons who may be affected as a beneficiary under any will(s) in question or on an intestacy (i.e. where there is no will) should either be joined as parties or served with a notice of the action.

 

No one may distribute or otherwise deal with the assets under the estate without the Court’s permission pending the outcome of the probate action.

 

Problems in Administration

 

General issues

 

Regardless of whether a deceased dies with or without a will, his personal representative will bear the responsibility for administering the deceased’s estate upon grant of probate or letters of administration. In the course administration, however, problems and disputes might arise as between the personal representative, beneficiaries and/or creditors. For example, some beneficiaries might complain about non-disclosure of the accounts in respect of the assets under the estate or any improper disposal of assets under the estate; or the personal representative is faced with an issue that he cannot resolved on his own.

 

The Court’s intervention may then be required to determine any question or to grant any relief under the specified rules of Court. The usual questions for the Court to determine in the context of administration include:-

 

  • The construction of the will (i.e. the meaning of certain clauses or words in the will), or who are the beneficiaries entitled under the will or on an intestacy.
  • The composition of any class of persons having a claim against the deceased’s estate or a beneficial interest in the estate.
  • The rights or interests of a person claiming to be a creditor of the deceased’s estate or to be entitled under a will or on the intestacy of the deceased.

 

The reliefs available are (among others) as follows:-

 

  • Accounts be produced and, if necessary, be verified.
  • The personal representative to do or abstain from doing a particular act.
  • Any sale, purchase or other transaction by the personal representative be approved.

 

Costs: personal representative beware

 

Although a personal representative is entitled to an indemnity out of the estate against all expenses properly incurred in the administration process, he will be deprived of his indemnity if it is held that the expenses were not properly incurred. Therefore, a personal representative who is sued as such, or who is proposing to sue as such, is at risk of being deprived of his costs of defending or bringing the action if he does so without either the consent of all his beneficiaries, or in default of such consent, the direction of the Court.

 

It follows that application for directions about the conduct of the proposed or actual litigation should be made to the Court promptly and in separate proceedings. Such an application is known as a ‘Beddoe’ application, after an old English case.

 

In deciding whether a Beddoe order would be granted, the prevailing circumstances at the time the claim (in the proposed action) or the defence (in an action where the personal representative is sued) is to be filed and not the benefit of the outcome of the case should be considered. In particular, three issues have to be determined: (a) the strength and weakness of the personal representative’s claim/defence; (b) the options available to cover the personal representative’s costs; and (c) the estimated costs of the claim/defence.

 

The Beddoe application is therefore a crucial factor for the personal representative to consider before he takes out an action or puts up a defence to an action in respect of the administration of the estate.

 

Should you have any questions on the above issues in probate and administration, please feel to contact us for assistance.

 

 

Walter Tsang

Solicitor

Hampton, Winter and Glynn

January 2016