Removing a beneficiary from a will after death

You can change a person’s will after their death, as long as any beneficiaries left worse off by the changes agree.

If there’s no will the law decides who inherits. You can make changes to the inheritance in the same way as if there’s a will.

Any changes to the will must be completed within 2 years of the death.

You can change a will to:

• reduce the amount of Inheritance or Capital Gains Tax payable
• provide for someone who was left out of the will
• move the deceased’s assets into a trust
• clear up any uncertainty over the will

What you need to do

To change a will you’ll need to make a ‘variation’.

You don’t need a formal document or deed - you can write a letter as long as it meets these conditions.

If the variation means there’s more Inheritance Tax to pay, you must send a copy to HM Revenue and Customs (HMRC) within 6 months of making it.

You don’t need to send a copy to HMRC if the variation doesn’t change the amount of Inheritance Tax due.

Executors of wills are those who are responsible for carrying out the wishes of the testator (the person who has died leaving a will). However, at times, there may be disputes arising between an executor and beneficiary, or between co-executors.

Here are some of the possible conflicts that could arise between parties, and possible steps to take in the event of such conflicts:

Dispute between Executor and Beneficiary

Conflicts may arise between the executor and beneficiary. Often, this is because the beneficiary suspects that the executor is not following the will.

A 2016 case involved the deceased creating a trust in her will, for her daughter suffering from Down Syndrome. However, the executor of the will failed to pay over $100,000 to the charity in charge of the trust.

Another circumstance in which disputes may arise is when executors take too long to distribute the estate. In Chiang Shirley v Chiang Dong Pheng, the plaintiff commenced proceedings against the executor on the grounds that he had failed to administer the estate on a timely basis.

In this regard, the duties and liabilities of an executor should be examined to determine the executor’s responsibilities.

Duties of an Executor

The executor has to apply to court to take out a Grant of Probate to deal with the will.

The executor owes a fiduciary duty to the beneficiaries of an estate, to act with impartiality, in the best interests of the beneficiaries in relation to the administration of the estate.

This includes:

• Collecting and converting the assets into cash (as necessary)
• Paying all the funeral and testamentary expenses, debts and legacies

Executors are also trustees of the deceased’s assets.

An executor owes a statutory duty of care pursuant to section 3A of the Trustees Act. This means that the executor has to exercise reasonable care and skill in the discharge of his powers. Such powers include the general power of investment, and the power to acquire land.

To find out who should be your appointed executor, download our free guide to will-making:

Liabilities of an Executor

An executor may be held liable for not fulfilling his or her duties. Among other things, he may be held liable for:

• Not following the terms of the will
• Failure to pay debts
• Failure to pay taxes owed by the deceased and/or his estate

Can Beneficiaries Sue the Executor?

If the beneficiary feels that the executor is not discharging his or her duties competently, it is possible to sue the executor.

Passing Over a Named Executor

In some cases, the court may be willing to pass over, i.e. remove a named executor, before they have taken office.

In deciding whether to pass over the executor, the court will consider whether entrusting the administration of the estate to the executor would be undesirable and unsafe.

Under section 55 of the Probate and Administration Act (PAA), there are several situations in which the court has discretion to pass over a named executor and grant the letters of administration to the Public Trustee. These include:

• Where no application has been made for probate or letters of administration to the deceased’s estate within the 6 months after the deceased’s death;
• Where an application for probate or letters of administration has been made within the 6 months from the deceased’s death, but has not been proceeded with or has been withdrawn or refused; and
• Where an administrator has failed to extract the grant of letters of administration

Can an Executor Step Down?

Given the duties entrusted to an executor and the potential liabilities he is exposed to, some executors may wish to step down from their position.

An executor may step down by renouncing his right to be an executor. However, once an executor accepts the office, the office cannot be renounced and the executor can be sued for if he does not fulfil his duties.

The PAA provides for 2 types of renunciation:

1. Express renunciation

Firstly, under section 3 of the PAA, an executor may expressly renounce his right to be an executor.

On the hearing of any probate action or application, he can do so orally by himself or by his lawyer. Alternatively, he can do so in writing and have a lawyer attest to the renouncement.

2. Constructive renunciation

Section 4 of the PAA provides for constructive renunciation, i.e. the executor is taken to have renounced his role without him having expressly renounced it.

Beneficiaries may issue a citation to the executor, i.e. a notice requiring the executor to accept or refuse his right to the grant of probate or letters of administration.

Constructive renunciation may then occur in 2 circumstances:

1. If the executor defaults in making an appearance, he will be deemed to have renounced his right to the grant of probate or letters of administration; or
2. If the executor appears but does not apply for probate or letters of administration, even after an individual with an interest in the estate has obtained a court order requiring the executor to apply by a certain deadline.

Challenging a Will

Grounds for challenging a will

In some cases, conflicts may arise as the validity of the will is challenged. There are 4 grounds for challenging a will:

1. The formalities for creating a will were not complied with
2. The testator did not have testamentary capacity, i.e. the mental capacity to make a will
3. The testator did not know and approve of the contents of the will
4. The testator was under undue influence or the effects of fraud

Who can challenge a will?

Anyone who has an interest in the will may contest it.

Under the Inheritance (Family Provision) Act, the deceased’s spouse or children can also challenge the will on the basis that the distribution of assets in the will does not provide reasonable provision for them.

The court may then order for a reasonable sum of maintenance to be paid from the deceased’s estate to them.

The court’s action

If the will is successfully challenged, the will is not valid and will not be followed.

You can read more about challenging a will here.

Entering a caveat

Beneficiaries might have concerns about whether someone has the right to apply for a Grant of Probate.

For instance, they might have concerns about the validity of a will or the suitability of an executor. Therefore, they might enter into a caveat.

Under section 33 of the PAA, a person with an interest in a will may enter into a caveat so that no probate or letters of administration may be granted without notice to him.

Further, after entry of such caveat, no grant will be made until the caveator (i.e. the person who entered into the caveat) has had the opportunity to contest the right of any probate applicant to a grant.

Entering into a caveat may serve the following purposes:

• To give time to the caveator to make enquiries and to obtain information to enable him to determine whether there are grounds for opposing the grant;
• To give any person interested in the estate an opportunity of bringing any question in respect of the grant before the court on summons; and
• As a preliminary step to a probate claim or to the issuing of a citation

For the caveat to be granted, the person applying for the caveat must be able to show that the grant of probate would affect some interest of his. In this regard, the courts have found that loans or investments do not give rise to caveatable interests.

Disputes between Co-Executors

Co-executors may be appointed to prevent problems like fraud from arising, as each executor keeps the other in check. However, this also means that there may be disputes between co-executors.

One circumstance in which conflict may arise is where one executor seeks to act without the consent of the other executors.

How Can an Executor Minimise Disputes while Administering the Estate?

Discharging their duties in a timely manner

First, an executor can ensure that he discharges his duties within the time period required. The estate has to be administered within a “reasonable time” (about 6 months). Reasons will have to be provided to the court for delays in administering the estate.

Regular communication with beneficiaries

Regular communication between executors or between the executors and beneficiaries establishes trust between the parties. This reduces misunderstandings, and ensures that all parties are on the same page with regard to the will.

Hiring a probate lawyer

Another option would be to hire a probate lawyer. While hiring a probate lawyer is not a legal requirement for executing a will, a probate lawyer can guide you through the potentially lengthy and stressful process of doing so.

Furthermore, a probate lawyer can help you in settling disputes between parties. Since other parties might take legal actions against you as the executor, you might want to hire a probate lawyer to protect the interests of the estate.

Additionally, if the estate cannot pay its debts, the probate lawyer can provide legal advice on which debts should be paid first so as to avoid or minimise legal liability.