Contentious probate solicitor, Bronte Pettifer, considers the frequently asked question, ‘What can an executor do if someone refuses to release the will?’
It is not uncommon for our team to be presented with a scenario where an individual is in possession of a will and refuses to release it to the rightfully named executors. When this situation arises there are steps the executors can take to force those holding the will to release it.
The legal framework
Under section 123 of the Senior Courts Act 1981 (“SCA”) the Court may issue a subpoena requiring any person who has in his possession, custody or power, any document which is or purports to be a testamentary document.
The effect of this provision means that the individual will be required to bring the document to the attention of the executors, or deliver it by any other means directed by the Court.
This application can be made where there is good reason for the original document to be lodged in a district registry. For example, for the purpose of applying for probate.
The subpoena will often require delivery of the document within a prescribed timeframe (usually 7-14 days).
The legal procedure
Where a probate claim has not been commenced, under section 123 SCA, an application can be made without notice to the district registry. The application should include an affidavit, which is a legal document that sets out the basis for the application.
Where a probate claim has commenced, the application can be made to a Master or District Judge for the issue of a witness statement, requiring the individual to produce the document to a relevant Court.
What if they do not have the Will?
If the individual ignores the request to produce the will following a subpoena, an application can be made under section 122 of the SCA to compel that individual to appear in front of a Judge to explain why the will has not been produced.
If the individual no longer has the will, or it is not within his/her control, it is possible that the individual may be compelled to attend Court to be examined about the will. Any person who, having been required by the Court to be examined, fails to attend, answer any question or produce any document, can be found guilty of contempt of court and may be punished by committal.
How we can help
If you are an executor and are seeking to obtain a will which is being held by an individual who refuses to release it, then speak to our experienced team. Our lawyers deal exclusively with probate disputes, and have wide experience of making applications for the release of testamentary documents.
We will carry out a free case review and consider what action is recommended, including whether an application should be made under 123 SCA. We can also advise on the funding options open to you.