BE PREPARED! ANTICIPATING QUERIES FROM THE PROBATE REGISTRY

My earlier article “Reducing Risk in a Changing World” stressed the importance of file attendance notes in relation to mental capacity.  However, for a number of other reasons, notes are also extremely helpful for those who are administering the testator’s estate, with regard to the circumstances surrounding the execution of the Will. Understanding the problems that can arise during the course of an administration can not only save you money and protect your indemnity insurance, but will also ensure that your client’s family and beneficiaries should hopefully not endure unnecessary delays .
 
Kings Court is always looking to find innovative and efficient processes that can cut down delays and problems with Estate Administration.  One obvious approach is to reduce the number of queries coming from the Probate Registry when we have submitted an application for a Grant of Representation. One of the most common questions raised by the Probate Registry when applying for a Grant is regarding the execution of the Will, and specifically with regard to the handwriting of the testator; this could be because it is a mark or there is a shaky signature.

In these circumstances the Probate Registry quite often wishes to have confirmation as to whether at the time of execution the testator had knowledge and approval of the contents of the Will. This, naturally, delays the issue of the Grant because Affidavits have to be prepared for either the witnesses of the Will or the Will drafter or possibly both – for confirmation that the testator did know and approve the contents of the Will at the time of execution.

In the worst case scenario, if the Will was made many years ago and the witnesses or Will drafter cannot be traced or may indeed have died, then the Will may fail. Or alternatively, (and this may be considered a downside!) when requesting an Affidavit from a witness it may transpire that they confirm that they were not present with a second witness when the testator signed the Will and thus the Will fails! 

There are two steps that could be taken in order to avoid this situation.

Firstly, on a more general point, Will drafters should make sure that their file attendance notes at the time of Will instruction taking and at the time of execution are comprehensive. This means that whoever is extracting the Grant will have contemporaneous evidence of the circumstances of execution and can make this available if required to the Probate Registry.

The second step is pre-emptively to prepare an Affidavit of Due Execution and/ or Affidavit of knowledge and approval of the contents of the Will once the Will has been executed, and lodge this with the original Will. This will be extremely useful for those who administer the estate and we have found that delays can be avoided by submitting these to the Probate Registry at the time of applying for the Grant of Representation.

Other examples that Kings Court are presented with on a frequent basis are Wills which are undated (which of course does not invalidate the Will), a printed signature and a blind/ poorly sighted attestation clause not competed. In all these cases, the Probate Registry will require evidence, usually in the format of an Affidavit from either the Will drafter or one of the witnesses. Once again file attendance notes will need to be heavily relied upon to substantiate the date on which the Will was signed. Moreover, for a blind attestation the file attendance note will be particularly useful if requisitions are raised concerning the incomplete attestation clause, that is, if it is stated that the Will was read over but does not specify who read the Will over to the testator.

A more serious example is a challenge to the validity of a Will, and more particularly, that it has not been executed in accordance with section 9 Wills Act 1837. We have had experience on numerous occasions where this has been asserted. One specific example was a situation where the claimants did not have a claim under the Inheritance (Provision for Family and Dependants) Act 1975, so instead they proceeded to challenge the validity of the Will. Had the Will drafter been present at the execution and made a detailed note of the same, any such challenge would potentially have been severely weakened by such contemporaneous evidence, thereby potentially saving the estate significant litigation costs. In this particular example, due to the family circumstances there were a number of obvious clues that all was not well and that such a challenge may arise upon the death of the testator.  As an advocate of risk management and protecting our insurance, it is possible to go one step further. The simple approach is to treat each and every Will as if it could potentially be challenged especially in this changing world and follow the advice in these articles.

As professionals in this changing world, Will drafters need to be aware of the fact that just because probate disputes arise after the death of the testator, they still need to appreciate the risks involved and should always bear in mind when taking instructions and overseeing execution of the Will, that it could potentially be challenged in the future, even if at the time it does not look like any claim would have any merit.

Remember that a testator is not around to speak for themselves when a dispute arises or to say what they really wanted to happen. The only way they can express their wishes is through their Will and the surrounding documentation that is prepared by the Will drafter which the court will consider in great detail.

Next time, in my final article in this series, I will cover challenges under the Inheritance (Provision for Family and Dependants) Act 1975 and undue influence and the importance of your file attendance notes.

Andrea Pierce is Head of Legal Services at Kings Court Trust Corporation.  She can be contacted on 0800 496 9000 or email her on andrea.pierce@trustcorporation.com.