What can an executor do when a will is challenged?

In this short article, 'what can an executor do when a will is challenged?', we look at a little known legal principle called a 'Fitzhugh Gates Order'.

A Fitzhugh Gates Order provides an executor (or other personal representatives of an estate) with a weapon that can be used to combat a caveat or a challenge brought against the validity of a will.  We deal with inheritance disputes on a national basis and are here to help executors when they are facing a disputed will claim. It is important that executors act carefully in these circumstances as they could be held personally liable. If an executor is dealing with a will challenge and is in any doubt about the legal position they can call our free legal helpline on 0808 139 1599 for initial guidance.

Generally speaking where an executor or personal representative acts in good faith while administering an estate they will be protected from becoming personally liable if the validity of the will is challenged after they have distributed the assets.  But the difficulty for an executor arises when they are aware prior to distribution that a challenge to the validity of the will is being contemplated.  In these circumstances the executor risks being accused of acting in bad faith if they distribute the estate while on notice of a potential claim. In particular they run the risk of personal liability. However, it is equally unrealistic for the executor to do nothing. They cannot simply sit tight and wait indefinitely for the claimant to mount their challenge, especially if the challenger is dragging their feet.

So what can an executor do in these circumstances to protect themselves while at the same time progressing the administration of the estate?

A Fitzhugh Gates Order offers the executor a particularly effective option in this scenario. It encourages the claimant to get a move on and protects the executor if they don't do so.

The purpose of a Fitzhugh Gate Order is to sanction a course of action to be taken by the executor in connection with the administration of an estate. This means that the executor can take that action without risk of being held personally liable for the consequences.  The actual course of action will vary from case to case, depending upon the specific circumstances involved. However a typical Order will authorise the executor to distribute an estate if formal legal proceedings challenging the validity of a will are not commenced by the claimant by a certain date.  The Court can make other Orders if it sees fit.

One of the attractive features of this type of Order is that it allows the executor to move matters on while at the same time protecting him. The executor cannot be criticised or held liable if he acts in accordance with the Order. So from the executor's point of view seeking a Fitzhugh Gates Order is a very sensible precaution to take when dealing with a will challenge.

A Fitzhugh Gates Order does not prevent the will challenger from issuing court proceedings at a later date.  It does however allow the administration of the estate to proceed without fear of reprisal or censure.  It is, in essence, a final warning shot to the will challenger to waste no further time in bringing their case before the Court. They are themselves on notice that if they fail to do so the estate will be distributed in accordance with the terms of the will they seek to challenge.  These Orders therefore act as a useful weapon in the armoury of an otherwise frustrated executor.

What can an executor do when a will is challenged?

If you are an executor dealing with an estate where the validity of a will has been challenged you are welcome to call our legal helpline on 0808 139 1599 for free initial guidance. We will look at whether a Fitzhugh Gates Order is likely to be the right option for you and will review other courses of action that are open to you. Alternatively, you can send brief details to us by email at info@inheritancedisputes.co.uk