Q&As

A is the sole executor and sole residuary beneficiary under B’s Will. C, is challenging the validity of the Will on the grounds of testamentary capacity. There are no court proceedings. A has said he is responding as executor and he asserts that B had capacity and claims his costs of obtaining a medical report and associated solicitors costs can be paid by the estate–is this correct, and is obtaining a medical report going beyond an executor’s duty to remain neutral? Should such costs be borne by A personally in his capacity as beneficiary?

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Produced in partnership with Oliver Auld of Charles Russell Speechlys LLP
Published on: 01 October 2021
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Where court proceedings have not been issued, the appropriate action to be taken by A, as executor, will depend on the extent to which the testator’s capacity to make the Will is in doubt and how far C’s challenge to the Will has been taken.

The burden of proof of capacity has always rested in the first instance with the person proving the Will. The personal representatives have to prove that the Will is valid. This involves proving that all the necessary

Oliver Auld
Oliver Auld

Oliver specialises in advising UK and international clients in relation to a wide range of contentious trust, probate and other private wealth disputes. He acts for a diverse range of high net-worth individuals, professional trustees and other fiduciaries, who are involved in the management of family wealth. He also acts for clients involved in sensitive and confidential disputes in the Court of Protection. Oliver's practice predominantly involves complex and multi-jurisdictional disputes in relation to inherited wealth and assets held in English and offshore family trusts. He advises clients on claims challenging the validity of wills and under the Inheritance (Provision for Family and Dependants) Act 1975 and is experienced in acting for a trustees and beneficiaries in a wide range of contested and uncontested court applications to resolve issues that have arisen in the administrations of trusts and estates. His recent reported cases include: ' Cowan v Foreman and others [2019] EWHC 349 (Fam) ' Right Hon Gloria Wesley, Dowager Countess Bathurst v Chantler and others [2018] EWHC 21 (Ch) ' Shearer v Kevin Neal Associates Limited (2017) ' Wooldridge v Wooldridge [2016] (Case No: 3CL1022132) Oliver was recognised as 'Next Generation Lawyer' by the Legal500 in 2017 and an 'Associate to Watch' by Chambers and Partners in 2018 in the field of contentious trust and probate.

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Jurisdiction(s):
United Kingdom
Key definition:
Beneficiary definition
What does Beneficiary mean?

A person who has a interest'>beneficial interest in property under a trust.

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