In our previous blogs we discussed whether professional executors are required, what the role of executor entails, when lay executors should consider taking advice, and what an executor should do if they can’t or don’t want to act. However it may be that in difficult or complex estates, the executor is willing to act but unfortunately upon reading the will, does not understand the meaning or effect of it.
Wills are formal documents and whilst they are generally drafted in a way that most people can understand, there are often complexities. It is not uncommon that wills will be difficult to understand particularly where they contain complex trust arrangements. If you have read the will and you do not fully understand what it means or what you should be doing it is always worth taking some professional advice. A solicitor or barrister should be able to explain to you what the will means and if it is a particularly complex arrangement, it might be worth instructing solicitors in the administration of the estate to make sure everything is done properly.
However in some cases wills are difficult to understand not just because they are complex, but because they are so badly written that they just do not make sense. It is often the case with home-made wills, but unfortunately, it is sometimes the case with professionally drafted wills as well. If you have taken advice from a professional and the professional agrees with you the will does not make sense, the usual course of action would be either to apply to the court for "construction" of the will. Construction occurs where the will has been drafted in way that results in an error which does not necessarily invalidate the will, but makes it unclear or meaningless. In that case, the executors can apply to the court to construe the testator's true intentions and give instructions to the executors as to how the estate should be administered. It is important that the executors do not assume or take risk because you are subject to the obligations as set out above and would be personally liable to the estate if you made a mistake which caused loss.
Occasionally a will may be difficult to understand because there are mistakes in it. In those cases it may be possible to apply to the court for rectification. Rectification gives the court powers to fix a mistake in a will which occurs either because of a clerical error or because a professional has misunderstood the testator's intention. In that case the executors should apply to the court for rectification of the will. However executors should be aware that it is normally only minor mistakes which are capable of rectification. If the will is completely meaningless, the mistake makes it invalid, or a professional perfectly understood the testator's intentions but misunderstood the law and therefore failed to effect them, the court would generally not considered that to be a matter for rectification.
Alternatively if the will is unclear on what the executors should or should not do in certain circumstances or you were unclear on how to perform your duties, either because of the wording of the will or because of external circumstances (such as a dispute between beneficiaries) it is also possible to apply to the court for directions. In this case you would apply to the court telling them the issue that you face and the options available to you and ask that the court to provide you with information on how to proceed. Generally an executor who has done this and has followed what the court has said will not be liable for any claim for breach of duty or negligence having followed the court's directions.
If you have any issues dealing with an estate or wish to be removed as an executor please do not hesitate to contact Charlotte Braham by email on 01494 893529
If you wish to instruct a professional to assist you with administering an estate, please contact our Wealth Management and Taxation Team on 01494 521301.