The role of an executor is to carry out the instructions outlined in a will after someone passes away. But what happens if circumstances change, or if certain aspects of the will seem problematic? A common question that arises is: can an executor change a will after death? In this blog, we’ll explore whether an executor has the legal authority to make changes to a will and under what circumstances any modifications might be allowed.
What is the Role of an Executor?
An executor is legally responsible for managing the deceased’s estate according to the instructions in their will. This includes duties such as:
- Collecting and valuing assets.
- Paying off any debts, including taxes.
- Distributing the remaining assets to beneficiaries as specified in the will.
- Managing probate, the legal process of proving and registering the will.
As the executor, their primary role is to ensure that the deceased’s wishes are honoured. However, the executor does not have the power to unilaterally change the terms of the will after the testator’s death.
Can an Executor Change a Will After Death?
In most cases, the simple answer is no—an executor cannot change the will after the person has died. The will is a legally binding document, and the executor’s duty is to follow it as written. Any attempt to alter the will without legal authority could be considered a breach of the executor’s duty, and they could be held personally liable for any financial losses or legal disputes that arise from such actions.
However, there are some situations where changes can be made with proper legal procedures, but these are exceptions rather than the rule.
When Can Changes Be Made to a Will?
Although an executor cannot change a will at their discretion, certain legal processes allow for modifications in specific circumstances. Here are the main scenarios where changes might be possible:
1. Deed of Variation
Beneficiaries of a will can agree to change the distribution of assets using a deed of variation. This legal document allows beneficiaries to alter how the estate is divided, but only with the consent of all affected parties. The executor plays a role in facilitating this process but cannot force changes without beneficiary approval.
Common reasons for a deed of variation include:
- Tax planning: Beneficiaries might choose to redirect their inheritance to minimise inheritance tax.
- Family agreements: If the will appears unfair, beneficiaries might agree to redistribute the assets in a way that better reflects the deceased’s wishes or to resolve family disputes.
2. Rectification of the Will
In some cases, an executor or beneficiary can apply to the court for rectification of the will. This is typically done if there is a mistake in the will’s wording or if the will doesn’t accurately reflect the testator’s intentions due to clerical errors or misunderstandings by the solicitor who drafted it.
Rectification must be sought through the courts, and it is not a change made by the executor alone. The court will assess whether the mistake genuinely affects the testator’s intentions.
3. Invalid or Unclear Clauses
If a will contains ambiguous or unclear language, the executor may need to seek legal advice to interpret these clauses. In extreme cases, the court may be involved to clarify what the testator meant. This does not constitute a change to the will but rather a legal interpretation of the unclear provisions.
4. Partial Intestacy
If the will does not dispose of the entire estate (i.e., some assets are not mentioned), the remaining assets will be distributed according to the rules of intestacy. In this situation, the executor must follow UK inheritance laws rather than making personal decisions about the unallocated assets.
Can the Executor Override Beneficiaries’ Wishes?
An executor’s role is to administer the estate according to the will, not the preferences of the beneficiaries. While beneficiaries may request certain changes or adjustments, the executor cannot override the will to accommodate these wishes unless a formal deed of variation is agreed upon by all parties. Executors must always prioritise the legal requirements of the will over individual beneficiary requests.
What Happens If the Will Is Contested?
If a will is contested, the probate process can become more complex. Beneficiaries or other parties may contest the will on grounds such as:
- Lack of mental capacity: If the testator was not of sound mind when the will was made, it could be challenged in court.
- Undue influence: Claims that the testator was coerced or pressured into making the will in a certain way.
- Improper execution: If the will was not signed or witnessed correctly according to legal requirements, it could be deemed invalid.
In cases where a will is successfully contested, the court may rule to change how the estate is distributed. However, this decision comes from the court, not the executor.
What Should Executors Do If They Disagree with the Will?
If the executor personally disagrees with the will’s contents, it is important to remember that their role is to carry out the deceased’s wishes, not their own. However, if they believe that there are legal issues with the will (such as fraud, coercion, or mistakes), they should seek legal advice.
Executors who believe there are serious legal problems with the will can bring these concerns to the attention of the court or consult with the beneficiaries to explore whether a deed of variation or other legal solutions might be appropriate.
While an executor has significant responsibilities in managing and distributing an estate, they cannot change a will after death unless through specific legal procedures like a deed of variation or rectification in court. The executor’s primary duty is to ensure that the testator’s wishes are carried out as stated in the will.
If you need help with the role of an executor or have questions about the legalities surrounding wills, Origin Wills is here to guide you through the process and ensure your estate is managed according to your wishes.
Contact us today:
- Phone: 020 8777 6767
- Email: reception@originwills.co.uk
Frequently Asked Questions (FAQs)
Q1: Can an executor refuse to follow the will?
A1: No, an executor cannot refuse to follow the will. They are legally bound to execute the instructions as written. If they have concerns, they should seek legal advice but cannot alter the will on their own.
Q2: Can beneficiaries change a will after death?
A2: Beneficiaries can change the distribution of the estate through a deed of variation, but only if all affected beneficiaries agree. The executor cannot initiate changes without consent.
Q3: What happens if the will contains mistakes?
A3: If a will contains errors or unclear provisions, the executor may apply to the court for rectification. This is not a change to the will but a correction to ensure it reflects the testator’s true intentions.
For more information on making a will, have a look at the official gov.uk page.