Article written by Simona Morina, Contested Probate Solicitor
The loss of a loved one can be a deeply distressing time for family and friends. Often, the deceased’s Will provides a way to distribute their assets and possessions, ensuring their wishes are respected. However, in some instances, the distribution of the estate may be disputed. Contesting a Will after a Grant of Probate presents unique challenges and complexities, this article will explore the essential aspects of this legal procedure.
Understanding the Grant of Probate
Before delving into contesting a Will, it is essential to grasp the concept of probate and the grant of probate. Probate is the legal process of administering a deceased person’s estate, ensuring their assets and debts are appropriately managed and distributed according to their Will. The grant of probate is a legal document issued by the Court, confirming the validity of the deceased’s Will and granting authority to the executor to manage the estate.
Grounds for Contesting a Will
Contesting a Will involves challenging the validity of the Will itself or the process leading to its creation. Some common grounds for contesting include:
- Lack of testamentary capacity: if it can be proven that the deceased did not have the mental capacity to understand the consequences of making a Will at the time of its creation, the Will may be deemed invalid.
- Undue influence: if someone exerted undue influence on the deceased during the creation of the Will, it may not reflect the deceased’s true intentions.
- Fraud or forgery: if the Will was forged or created under fraudulent circumstances, it can be challenged in Court.
- Improper execution: each jurisdiction has specific requirements for a Will’s proper execution. If these requirements were not met, the Will might be invalidated.
For more details on grounds for contesting a Will, please refer to our article on this point.
Challenging a Will After Grant of Probate
Once the Court grants probate and the executor begins distributing the estate, the process of contesting a Will becomes more challenging. However, it is not impossible. If someone wishes to contest a Will after the grant of probate, they typically need to go through the following steps:
a) Seek legal advice: contesting a Will is a complex legal process that requires professional expertise. Engaging a solicitor experienced in probate disputes is crucial to understanding the specific laws and procedures applicable in your jurisdiction.
b) Lodge a caveat: a caveat is a formal notice that can be lodged with the probate registry to prevent the distribution of the estate until the dispute is resolved.
c) Gather evidence: the person contesting the Will must gather evidence to support their claim. This may include medical records, witness testimonies, financial records, or any other relevant documentation.
d) Mediation or settlement: before proceeding to Court, some jurisdictions require parties to attempt mediation or settlement to resolve the dispute amicably. This can save time, money, and emotional stress for all involved parties.
e) Court proceedings: if mediation fails, the case may proceed to Court. The Court will carefully consider the evidence presented and determine whether the will is valid or should be set aside.
It is vital that you act quickly, once a grant of probate has been issued certain time limits will apply. If you are making a claim under the Inheritance Act 1975, you only have six months from the date of Probate being granted to contest a Will. Claims relating to fraud have no time limit at all.
Can you contest a Will after the estate has been distributed?
You can contest a Will after distribution, however this can be complex and may cause difficulties. This is because even if your claim is successful, you will then need to collect any assets owed to you from the beneficiaries they have been distributed to.
Contesting a Will after a grant of probate has been granted is a complex and emotionally charged process. It is essential to seek legal advice early on and gather strong evidence to support the claim. While the challenges may be significant, the legal system aims to ensure that the deceased’s true intentions are honoured, and their estate is distributed fairly and justly.