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Disputing a Will

Please ensure you read and understand the disclaimer before reading this article. Always consult a qualified lawyer for your legal advice.

Is a will always set in stone or are there ways to challenge a will that you think may be inaccurate or wrong in some way? When it comes to wills, many people have questions and for good reason. This is because the issue of a will can often be confusing. While some people think that a will is the final word on a situation (and usually it is) there are some situations in which it may be disputed.

There are basically three main ways in which you can challenge or dispute a will. These are:

• Disputing a will before a grant.
• Disputing a will after a grant.
• Applying to the Probate Division of Supreme Court to revoke the will.

Before you can understand what these ways are, it is also important that you understand some basic things about a will. First you need to know that the executor of the will is the person in charge of dealing with the deceased person’s property legally. This is why every will must name an executor. Generally the executor will get a grant of probate from the Supreme Court in order to deal with the property and affairs of the deceased.

If you wish to challenge a will, there is a certain legal process you must take. While there are three different ways to challenge a will, one can be done before the grant of probate and the other two cannot be done until after the grant of probate. Of the three ways to dispute a will, what are they and how do they work?

Before a Grant

If disputing a will before a grant, there are certain warnings- or caveats- that are set in place when doing so. This is so that the Court cannot issue a grant of probate until they notify the person who filed the caveat. Some of these caveats include:

• Proof of the will in solemn form- This will only challenge the will on the issue of due execution. If there are concerns about forgery or whether or not the will was properly signed, then this is the type of claim that can be filed.
• General Caveat- This is typically filed in cases where there is doubt about the person’s ability to make the will, doubts regarding the beneficiary on a will or the identity of the beneficiary, or the testator’s understanding of the will. If it is suspected that the decease signed the will or wrote the will under distress, this may also be filed.
• Forbidding grants in respect of informal documents- Another circumstance is when the Court has the power to treat informal documents as wills. They may not have been properly signed or filed with the Courts but if they are still known to be a will, they may be used in lack of a formal will.

If any of these situations fit your case and you feel the need to dispute the will, then you can challenge it before the grant is issued based on the caveats above. Remember that you may need to act quickly to ensure it goes as it should.

Now if you want to dispute a will after the grant has already been issued, there are some circumstances that need to be met. First you need to be sure that you qualify under the legal system as a person qualified to challenge the will. To be eligible according to the law, you must be:

• A spouse or child of the deceased
• A former spouse of the deceased
• A person living in a domestic relationship with the deceased at the time of death
• A grandchild who was a member of the household of the deceased
• A grandchild who was partially or wholly dependant on the deceased at the time of death

If you feel that you fit the description of someone eligible to dispute the will, then you need to go about it in the right way. It is suggested that you seek legal advice right away in this type of situation as the law is constantly being updated, revised and adjusted and it can be difficult to go it on your own and be successful. An experienced wills and probate lawyer will be able to assist you in your case.

There are also some cases where you can apply to the Probate Division of the Supreme Court for a revocation of the will. Certain situations have to be present such as if the grant:

• Was made to the wrong person
• Is irregular or inaccurate
• Has become ineffective

Again, in these situations, there is an application process that must be followed and seeking legal advice is your best bets of having this happen successfully. It is not often that the courts will revoke a will so you must be certain that the exact conditions are met and proven to have this happen.