A Mini Guide to Contesting Probate

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Contesting a will can be a daunting and emotionally difficult time for all parties concerned. If you are displeased with the results of a will, you will want to contest probate. However, before you contest a will, there is a certain amount of information that you should know to ensure that you have the best chance of success.

Can Probate be Contested?

You cannot contest probate simply because you are unhappy with a result. However, your concerns may fall into one of four main categories that are used as grounds for challenging wills. These are:

  • Lack of testamentary capacity
  • Undue influence
  • Forged or fraudulent wills
  • The will is invalid

You may also be able to contest the will if a lack of financial provision was made towards a dependant. You can also contest probate if you have been disinherited and have evidence to suggest that you are the heir of the testator’s estate.

How to Contest Probate

You should file a probate contest to the probate court before the necessary contesting probate time limits. You should file a probate contest up to six months after the probate is granted if you are a filing under the Inheritance Act. However, some grounds allow you to file a contest up to 12 years after the probate. You should include information such as your relation to the testator and the grounds you are contesting under. You should also seek legal advice from a lawyer, who can suggest what evidence you may need, advise you on whether you have a strong claim against the current will, and discuss with you the best course of action to establish your claim.

What happens next?

The claims process can take up to a year, and complicated cases can take up to two. Firstly, a solicitor will check if you have grounds to contest the will legally, and they may take out a caveat to stop any of the will’s contents from being distributed during the duration of the claims process. These last for six months and can be extended for an additional six months if necessary, and if your claims have not been resolved.

Then, mediation and negotiation may be employed in an attempt to prevent the case from going to court. During this, both parties will meet under the supervision of an advisory and unbiased third party who can encourage both parties to discuss their options. If the claim is not resolved, the case will go to court where both parties will give information and a judge will weigh up the evidence, decide the successful party and decide who will pay for the court costs. If your court case is successful, the necessary claim will be provided by the court according to their judgement.

Although the contesting probate process can be confusing and misleading, by seeking probate advice and gathering evidence to support your case, there is no reason why your case cannot be settled without going to court or causing the least impact necessary on your daily life.

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