A Will Has Been Found After Probate - What Should We Do?

If a Will is discovered after the estate has been administered, you need to get expert legal advice. The original Grant of Representation must be revoked and a settlement negotiated. If this is not possible, then legal proceedings may follow.

What happens when an estate has been administered – only for a Will to turn up months or years later?

This is a major problem for all concerned, as the estate may have been administered incorrectly. Either, it will have been administered according to the rules of intestacy, if it was thought that the deceased didn’t have a valid Will. Or, it will have been administered according to the terms of an old Will, but now a later version of the Will (or a codicil) has been located.

This will be a big worry for the personal representatives who administered the estate because they are personally liable for any mistakes. The correct beneficiaries will, understandably, be upset that they have not received their entitlement. Yet the beneficiaries who were paid out incorrectly may have already spent their inheritance.

So, what is to be done?

What should you do?

The first thing is to check that the Will, new Will or codicil is actually valid. It must have been properly executed and the deceased must have had capacity when drawing up the document.

If the Will or codicil is valid, then the original Grant of Representation needs to be revoked. This involves an application to the Probate Registry by either the original personal representatives who wrongly distributed the estate, or by the Executors named in the later Will or codicil. At the same time, the personal representatives appointed under the new Will should apply for a new Grant.

We also recommend that everybody concerned gets independent legal advice so that they fully understand their legal position, as this will help in any negotiations.

Negotiating a settlement

Where possible, the next step is to negotiate a settlement between the parties involved.

An agreed settlement is by far the best outcome as court proceedings will be expensive and lengthy.

Court proceedings

If a settlement cannot be reached, then a claim could be made against various individuals. For example:

• A claim could be made against the personal representatives who administered the estate under an intestacy or incorrect Will
• A claim could be made against the person who failed to disclose they were holding the Will, despite being asked
• A claim could be made against the wrongful recipient of an asset. A request may be made for a monetary award or the return the asset

Claims against the personal representatives

A beneficiary under the new Will can bring a claim against the original personal representatives who incorrectly administered the estate.

However, the court can relieve a personal representative of personal liability where he or she has acted honestly and reasonably. Acting ‘honestly and reasonably’ might include making a thorough and proper search for any Wills, and getting professional advice as to the validity of a Will. The court has discretion as to whether to provide this relief.

Claims against wrongful recipients

A beneficiary under the new Will can also make a claim against the person who wrongly received a financial sum, on the basis that it is unconscionable for the wrong beneficiary to keep money to which they were never entitled. It does not require any bad faith on the part of the recipient. A claim can be made, whether or not the money has already spent, but is subject to a time limit within which the action must be brought.

However, there is no time limit when a claim is made against an asset itself such as a house. But the claim could be defeated if the incorrect recipient has converted it into a different sort of asset, such as by selling it. This type of claim is important where the recovery of the asset is more important than the financial loss, such as a family heirloom.

Worse still, claims previously made by people who said that they should have inherited, but did not, may be resurrected or new claims brought.

Consideration needs to be given as to the cost of putting all this right, as many inheritance disputes end up with the legal fees being more than the assets over which the beneficiaries are fighting.

Insurance to cover Executor mistakes

If there is ever any doubt about whether or not you are dealing with the last Will and Testament of the deceased, it is possible to purchase insurance to cover these risks. The beneficiaries of the estate should consent to the Executors taking out this insurance so that it can be a testamentary expense deductible before the distribution. When Aticus Law is instructed to administer an estate, we always offer clients the chance to purchase this type of insurance.