A deceased person’s assets and estate will be distributed depending on whether they left a Will or not. Though the process will be different, the end result will be the same:
the Executors (where this a Will); or
the administrators (where there is no Will),
are given authority to deal with the distribution of the deceased’s estate.
When can a grant be revoked?
If the deceased’s Will (or a later Will) is discovered after the grant of probate has already been issued, the original grant can be revoked by a district judge or registrar.
On the late discovery of a Will the grant can be revoked:
if a Will has been discovered where there was thought to be no Will, after the grant of the letters of administration; or
if a later Will is discovered, after the grant of probate.
If a codicil to the deceased’s Will is discovered after the grant of probate has been already issued, it can be sent to the Probate Registry on its own (without the need for revoking the grant of probate) providing it does not change the deceased person’s Executors. If the codicil does change the Executors, the original grant of probate must be revoked.
Other instances where the grant may be revoked include:
if the grant has been made through a lack of care (this may be referred to as per incuriam); or
if the name of the deceased as stated on the grant is incorrect.
Consequences of revocation
If the grant is revoked, a new grant of probate should be applied for according to the terms of the new Will. If the estate has been distributed already the new personal representatives should seek specialist professional advice on recovering the incorrectly distributed parts of the estate in order to correctly distribute the assets. The recipient of any cash gifts (who would not be entitled to the legacy under the new Will) may be liable for the full sum.
If the existing grant of probate or letters of administration is revoked, the personal representatives may be concerned about their liability for incorrectly distributing the deceased’s estate. The personal representatives may be protected from liability provided the court is satisfied that they acted in good faith and believed there was no Will or the original Will was valid at the time of making the distribution. Provided the court is satisfied, the personal representatives may retain or reimburse themselves in respect of any payments and/or dispositions made under the original grant.