In most circumstances, the Last Will and Testament is the paramount document. When someone contests a will, they lobby a serious challenge to the management of assets in an estate. A will, in summary, is the document that determines how to divide an estate and ensures they carry out testator’s wishes.
However, there are still instances where someone contests a will. Though these situations are rare, they do occur. As FT Adviser states:
There is no doubt that society has become more aware of the ability to challenge a will. (According) to court statistics, (they’re) more willing to see a challenge through to what is, inevitably, a bitter ending at trial.
Someone Contests a Will, How Do They Do It?
Somone can contest a will for only a few reasons. One of the most prominent reasons to contest a will is because there is evidence of fraud. Perhaps they had dementia during their last codicil*, or perhaps there was a falsification of the signature.
Other reasons why a will can be contested is if a named beneficiary doesn’t receive anything in the will, or if the contester financially relied on the deceased but not explicitly named (for example, a previous spouse who relied on childcare support).
Who Can Contest a Will?
Not everyone can contest a will. The only ones who can are
- Blood relatives;
- Someone who is a beneficiary beforehand but left out later on;
- A person who relies financially on the testator, or;
- Someone who receives a promise of a gift either verbally or otherwise that was forgotten in the will.
What Happens When Someone Contests a Will?
It’s crucial to bear in mind that there are time limits to contesting a will.
- If your name is not in the will, you have within 6 months of the grant of probate to contest.
- If your name is in the will, you have up to 12 years.
- Moreover, if the reason to contest a will is due to fraud, there are no time limits.
Build the Case
When contesting a will, there are a few steps to take. The first is to build evidence. This means proving either:
- Promises made by the testator;
- Debts that the testator owes, or;
- Proof of financial reliance.
File Your Case with the Probate Registry
Once you have the case, you will need to file it with the probate registry. Such a case filing is through a document known as a caveat. Ideally, you’ll issue this before probate, as it stops the issuance of probate.
Working with The Inheritance Experts gives you access to expert negotiators working on your behalf when contesting the will.
Most solicitors try to resolve the issue out of court so that all parties can leave with an agreeable settlement. This process can take a long time, even up to a year or more.
In some instances, parties settle the case out of court. Though the person who contests the will likely won’t receive the full sum, this is the best way to settle the matter. Particularly in a way wherein most parties agree and everyone goes home a winner.
FINAL RESORT: Go to Court
If negotiations fail when someone contests a will, the issue can go to court. This is the worst-case scenario and only occurs with the most extreme cases.
Contesting a will is a long process. But it’s important to get a solicitor on board you feel like you
- face an unfair exclusion from the will;
- are a creditor, or;
- believe there was an occurrence of fraud.
Hire professionals to build your case and fight for you so that you have the greatest chance of success.
*A codicil is an official name for updates to the will.