Administering an estate does not always go smoothly, and disputes can often arise during the probate process, which is why it is wise to seek the help of a contested probate solicitor. There have been many important cases in the past that show examples of the common problems faced in contested probate cases. Below are short summaries of three significant cases that are relevant to contentious issues over the removal of an executor and disputing a Will.
Khan v Crossland  – Removal of Executor
This unreported case involves a request from the beneficiaries to remove an executor.
In this case, the two named executors were employees of the Will writing company that drew up the Will.
The beneficiaries applied to the court to have the executors passed over, and a grant was made in the favour of one of the beneficiaries.
The executors applied for the application to be struck out on the grounds that for an executor to be removed they must have disentitled themselves in some way or another, which they had not. They also claimed that that the application was an abuse of power as it was funded by a rival firm, and therefore had an ulterior motive.
The Court found in favour of the applicants and ordered that the two named executors be removed. Importantly, the Judge stated that it was not a requirement for executors to be discredited or to disentitle themselves for an order for removal to be made.
While, usually, a testator’s choice of executors should not be disregarded lightly, in this case the reasons for the testator appointing these two particular executors were not recorded in his Will, and there had been no established connection between the executors and the testator. This meant that the testator’s choice would carry less weight than usual. Critically, the fact that all the beneficiaries were over 18 years, had full capacity and were in complete agreement that the named executors should be removed were all factors considered more compelling than the testator’s choice of executors.
Larke v Nugus Request or Statement
A Lurke v Nugus letter (or request) is usually the first step taken by contested probate solicitors and is a request for further information when there is a Will dispute. The purpose of the request is to gather as much information as possible regarding the planning and circumstances behind the creation of the Will. The name comes from the Larke V Nugus 1979 case.
The Law Society’s Practice Direction states that a Larke v Nugus statement should contain:
“ a full statement of evidence as to the preparation of the will, and the circumstances in which it was executed to anyone who has an interest in the dispute, whether or not you are acting for any of the parties”.
Questions that may be included in a Larke v Nugus request include:
- The nature of the relationship between the Will writer and the testator, and who introduced them to one another
- A request on how metal capacity was established and recorded
- If there were any earlier Wills, how the most recent differs from the earlier Wills, and the reasons for the changes
- What indication the testator gave that they knew were making a Will and how the terms of the Will were explained to the testator
- How the testator gave their instructions to the Will writer
- Who, other than the witnesses, were present at the signing of the Will and where the signing took place
In addition to the questions in the request being answered, it is common practice to enclose a copy of the Will file, which will contain drafts of the Will, attendance notes, and other information. The object of the Larke v Nugus statement is to resolve the matters without resorting to court action.
Ilott v Blue Cross and others  – Testamentary Freedom
Mrs Ilott’s mother disapproved of her choice of boyfriend. This lead to mother and daughter being estranged for 26 years. The mother, Mrs Jackson, died in 2004, leaving her £500,000 estate in a Will to a selection of animal charities, and she made clear in an attached letter that she did not wish her daughter to inherit anything from her estate. Mrs Ilott, whose income was mostly comprised of state benefits and in rented accommodation, made a claim under the Inheritance (Provision for Family and Dependants) Act 1975 on the premise that the Will did not provide her with “reasonable provision” and that Mrs Jackson had no known links with any of the charity beneficiaries. She was awarded a sum of £50,000. There then followed a number of complex appeals, with Mrs Ilott being awarded a sum of £163,000 to enable her to buy her rented home outright. The case arrived at the Supreme Court in 2017, who reinstated the original award of £50,000.
This case upholds the principle of testamentary freedom that allows individuals to leave their estate to whomever they wish after they have died without having to provide a set amount for family members. It also emphasises the complex difficulties facing claims by independent adult children for reasonable provision under the Inheritance Act 1975. You can read more about testamentary freedom here [link]
If you would like to discuss a possible contentious Will or probate situation with an experienced specialist contested probate solicitor, please call our National Helpline on 0845 388 3765. We will be able to connect you to the right lawyer for your specific circumstances.