Reasons to instruct a Solicitor to make a Will and assist in the administration of an estate
There is a growing trend for people to prepare their own homemade Wills, rather than instructing a Solicitor to do so.
Moreover, given the advent of online applications to apply for a Grant of Probate, executors named in Wills are increasingly deciding to deal with estate administration matters themselves, instead of seeking legal advice. This also applies where a deceased person did not put in place a Will so that family members are able to make the application online as administrators under the rules of intestacy.
This article looks at two recent cases in the last 12 months which highlight the benefits of seeking the assistance of Solicitors to deal with both (a) the preparation of Wills and (b) the administration of estates. Put very simply, estate administration means dealing with the assets and debts of a deceased person and providing the correct beneficiaries with their inheritance.
Case Study 1: Problems with badly drafted Wills
In the recent Scottish case of Petition by Vindex Trustees Ltd [2021] WTLR 1437, the Will of the late Estelle Brownrigg was drafted vaguely so that one of the charitable beneficiaries could not be traced. The executor of Mrs Brownrigg initially undertook an arduous search for the ‘Nelson Mandela Educational Fund, South Africa’ as stated in the Will to no avail and therefore elected to make a costly application to Court to seek directions.
It had been the intention of the executor to distribute the relevant funds to the ‘Nelson Mandela Children’s Fund’ with the Court’s approval, as this body appeared to be the most appropriate recipient of the legacy in the Will. However, the Court declined to provide any guidance so as to pass the decision-making onus back to the discretion of the executor.
Clearly, had the Will been prepared with advice from suitably qualified legal professionals, the intentions of the deceased would have been fulfilled with certainty by including a clause referring to a bona fide charity. Valuable time and money would also have been saved for the estate and the beneficiaries.
Case Study 2: Problems with lay executors administering an estate
In Da Silva v Heselton & ors [2022] WTLR 67, an executor who was not a Solicitor or an Accountant acted in the estate of the late Gladys Dulcie Townsend and charged the estate a total of £43,350.00 from 2003 to her removal in 2016.
Whilst the Will did contain a professional charging clause, the Court held in the first instance that as the executor’s own businesses did not relate to the activity of estate administration in any way, she was precluded from billing the estate for this work. The appeal of the executor was thereafter dismissed by the High Court to confirm that she was not able to charge the estate.
This case reinforces the fact that it is sensible for executors to obtain legal advice from the outset when dealing with the affairs of a family member or friend who has passed away. Getting clear advice will enable executors or administrators to avoid any common pitfalls and will ultimately enable matters to be progressed efficiently.
Get in touch today
The preparation and execution process of a Will and the administration of estates can be complicated and requires expert legal advice and assistance. For more information concerning this, contact our Private Client team on 0345 20 73 72 8 or at info@thursfields.co.uk
