What happens if probate has been granted and an estate has been distributed but a new will is later discovered? Lucy Edwards of Birketts looks at the complexities of incorrectly distributed estates.

What are the requirements of a valid will?

Before beneficiaries under a newer will can attempt to recover their entitlements from the personal representatives who distributed an estate incorrectly, first you should ensure that the new will is, in fact, valid. Therefore, you should check that the later will satisfies the formal requirements for a valid will.

In summary, the formal requirements for a valid will are:

• it must be made by a person who is 18 years old or over
• it must be made voluntarily and without pressure from any other person
• it must be in writing
• it must be signed by the testator in the presence of two or more witnesses present at the same time
• each witness must attest and sign the will in the presence of the testator
• the testator must have the requisite capacity to make a valid will at the time the new will was executed

If you believe the testator did not have the necessary testamentary capacity, you should seek any contemporaneous evidence of the testator’s mental capacity to rebut claims that the will is valid.

How do you revoke a grant of probate?

If the new will is valid, either the grantee of the original grant of probate or, if different, the executors named in the later will should apply to revoke the grant of probate. At the same time, an application should also be made to take out a new grant in favour of the personal representatives to the later will.

The applications should be made at the district registry from which the grant was originally issued and are made in the form of an affidavit. The application should set out the details of the first grant, the grounds for revocation (ie that a later will has been discovered) and the right to the new grant.

If the application is successful, the Probate Registry will then revoke the previous grant of probate on the grounds that the later will has been discovered and a new grant will be issued in favour of the personal representatives appointed under the new will.

Can a beneficiary bring a claim against you if you distributed an estate incorrectly?

A beneficiary under the new will's primary claim will be against the original personal representative who wrongly distributed the estate. The general principle is that personal representatives who have distributed the assets of the deceased are personally liable to any beneficiaries if an incorrect distribution has been made, even if the personal representatives were unaware of the mistake.

It may also be possible for a beneficiary to make a claim against the wrongful recipients of the assets of the estate. Indeed, as a personal representative, you may be able to recover the monies or asset from the recipient. For a wrongful recipient to be found liable in such claims is a question of whether the recipient received the assets in good faith and if it would be unconscionable for him or her to keep the assets.

While the facts of the case did not concern a new will being discovered, in the case of Fea v Roberts [2005] EWHC 2186 (Ch), an estate was wrongly distributed to a party with a similar name to that of the actual beneficiary named under the will. It was held to be unconscionable that the wrongful recipient should retain the assets. The court found that the wrongful recipient had not acted in good faith in relying on the representations that he was entitled to the inheritance as the defendant appreciated that the gift might well not have been intended for him.

What is the difference between personal claims and proprietary claims?

A personal claim can be made against a personal representative or wrongful recipient for compensation of the amount owed to the beneficiary under the new will. Such claims are, however, subject to a twelve-year limitation period running from the date on which the right to receive the estate accrued.

It may be possible to make a proprietary claim, whereby the beneficiary seeks to recover property or a specific asset from the personal representatives (if they are still holding the assets) or the wrongful recipient instead of monetary compensation. This is not subject to the twelve-year limitation period. However, in practice, it can be very difficult for a beneficiary to recover assets in this way, particularly if the asset in question has been sold and the proceeds have been mixed with the other assets of the recipient.

What is section 61 of the Trustee Act 1925?

Unless a personal representative has acted fraudulently in wrongfully distributing, the court has discretion under s61 of the Trustee Act 1925 to totally or partially relieve a personal representative of personal liability where he or she has acted honestly and reasonably. This means that if you conducted a thorough and proper search for any wills made by the deceased and there was no evidence to suggest that a later will existed, it is likely that a court would exercise its discretion and not hold you personally liable for wrongfully distributing the estate.

It is therefore very important when you first start acting for an estate that you consider carefully whether any later will may have existed by making enquiries of the deceased’s relatives, friends and any professional advisors.

Why should you place a deceased estate notice in The Gazette?

Furthermore, as a personal representative, you are afforded some protection if you have properly placed deceased estates notices in a local newspaper and The Gazette (in accordance with s27 of the Trustee Act 1925). Taking this action removes your personal liability if you have no notice of any claim when distributions are made, or liabilities are paid.

However, it should be noted that this will not protect you if you are also a beneficiary of the estate. In these circumstances, a claimant may have a personal claim against you or a proprietary right to follow or trace the asset that has been distributed.

What are the legal costs?

Both the personal representative and the beneficiary should be mindful of the costs of any such litigation, which can quickly become disproportionate to the amount the beneficiary may be entitled to under the new will and/or the overall value of the estate. If possible, attempting to negotiate a settlement outside of court will often be a less expensive and time-consuming process.

About the author

Lucy Edwards is a Solicitor at Birketts. Part of the Private Client Advisory Team, Lucy has experience dealing with a range of different matters, including drafting wills and lasting powers of attorney, probate work and providing advice to clients in relation to inheritance tax.

See also

What are the responsibilities of an executor?

How to write a will

Where should I store my will?

Find out more

Making a will (Gov.uk)

Applying for probate (Gov.uk)

Wills Act 1837 (Legislation)

Trustee Act 1925 (Legislation)

Image: Getty Images

Publication date: 4 December 2019