When a will is challenged, what should an executor do to avoid becoming personally liable?
What can an executor do when a will is challenged in order to avoid the risk of personal liability? We look at a little known legal principle called a ‘Fitzhugh Gates Order’. If you are an executor of a will that is being challenged and are worried about becoming personally liable then you can call our free legal helpline for guidance or send us an email.
Executors can be placed in a difficult position when a will is challenged. If they ignore the challenge and go ahead with a distribution then they can be held personally liable. But if they sit back and do nothing they can be criticised for delay. So what can you do when you find yourself in this Catch 22 position? A Fitzhugh Gates Order might be a solution. This allows an executor deal with the estate when a challenge has been brought against the validity of a will, while avoiding the risk of personal liability.
Generally speaking where an executor 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.
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.