The position for an executor where a person disputes the validity of a Will is extremely difficult. The job of the executor is to distribute the estate in accordance with the Will and in a reasonable timeframe, however if it is invalid, the estate may need to be distributed differently either under the terms of a previous Will, or potentially under the intestacy rules. The executor who distributes an estate knowing there is a dispute as to the validity of the Will may be accused of breaching their duties as a trustee, and acting in bad faith. Generally speaking an executor who administers an estate in good faith is indemnified and protected in doing so under section 27 of the Administration of Estates Act 1925. However if the executor was aware there was a dispute as to validity and makes the distribution anyway, they would not receive that protection.

So what about cases where allegations of invalidity have been made, but the accuser has taken no steps to progress their issues to an actual claim? This puts the executor in the very difficult position of needing to administer the estate, but not wanting to do so in bad faith and lose the protection of section 27.

In these circumstances, it may be possible for the executor to apply to the Probate Registry and seek an order requiring the person disputing the Will to issue their claim by a particular date. If the person does not issue their claim within the time limit given, the executor is then free to administer the estate in accordance with the Will. This is often known as a "put up or shut up order".

This can be a useful tool for executors in cases where accusations have been made but no steps to formalise those accusations into a claim have been taken. However, it is important for executors to understand that put up or shut up orders don't prevent a claim actually being brought later down the line, it merely protects the executor from liability or accusations that they have distributed in bad faith if the person does issue the claim later than the deadline given. There may also be costs consequences for a claimant who did not issue during the timeframes given, and later proceeds with a claim disputing the validity of the Will.

Executors should also be aware that, following the recent case of Parsons v Reid, when asking the Court for such an order, the Court require the trustees to give full and frank disclosure of all the information held by them in order that the Court can determine whether the claimant's prospective claims are insubstantial, remote or speculative. This will involve the Court assessing the merits of those claims, which may require disclosure of documentation from the trustees.

If you have any queries regarding Will validity disputes, put up or shut up orders or anything else raised in this article please do not hesitate to contact Toby Walker by email or on 01494 893512 or Kezia Brown by email or on 01494 893504.