As much as the whole experience can be upsetting, there are occasions when objecting to either probate or the will is necessary. Sometimes the details of the will fail to account for someone who should be a beneficiary � the most common occurrence of this is when that person is a dependent. Time is of the essence if you are considering the possibility of objecting to probate or intend to dispute a will, the sooner you seek legal advice from a contested probate solicitor the better, since the longer you leave it the less chance there is of being successful in your claim. There are time limits set by law and the courts.
Our probate solicitors deal with contentious wills and probate which may lead to the issue of legal proceedings in a court of law. We are litigation solicitors and we do not deal with non-contentious matters. We do not draft wills or deal with the administrative aspects of straightforward probate after the death of a testator except where there is a legal dispute. This may involve questions about the validity of the will, the ability or honesty of the executor or administrator and the situation that occurs when those with a valid claim including dependents do not benefit under the terms of the will when in law they are entitled to financial support. Our contested probate solicitors only get involved in challenging a will where there is an active dispute between beneficiaries or potential beneficiaries or when administrators or executors are failing in thier duty.
Challenging a will may depend on the validity of the document. In order for a will to be valid the following conditions must be met in full:-
The first step in any legal action involving probate is determination of the wills validity. All the other disputes become moot points if the disputed will is void. There�s no shortage of ways to challenge the validity of a will as the law prescribes stringent requirements for proper execution. Certain requirements apply to the testators themselves. For example, the testator must be over the age of 18 and of sound mind. The testator must fully comprehend the meaning of the will and must not have been under any undue influence while making the will. The document must be signed by the testator as well as two other individuals who witness the testator signing the document. It is important to note that the witnesses should not be beneficiaries of the will or else they lose any gifts made to them in the document. Once the validity of the will has been established, it's time to deal with the heart of the issue at hand. Unhappy beneficiaries or someone left out of the will altogether, can bring legal action objecting to probate based on any number of things. For instance, a dependant of the deceased might bring a claim to the estate if they were not adequately provided for in the will. Such cases call for the skills of a specialist contested probate solicitor.
If you have made a will that is later deemed to be invalid then you will be treated as if you hadn�t made any will at all. If an invalid will was the only will you made, it is called dying intestate, unless an earlier will then takes precedence. This could mean that the people you want your assets to go to won't receive them and it is possible that the Crown could step forward to lay claim to all of your assetts.
If any of the above conditions fail to be met it would provide grounds for a contested probate solicitor to prove that a will is invalid however a lost original will can also cause major problems even if a copy is available. A lost disputed will invariably leads to a full blown court case to decide whether it was actually lost or whether it was destroyed by the testator as a result of the testator wanting to get rid of it in favour of writing a new will. It is understandable that those beneficiaries of a previous will who may be cut out of the later lost will, would want to contest an application to prove the lost will to ensure that they have the best chance of obtaining an inheritance from the earlier will. The proposed executor of the lost will must be able to prove to the satisfaction of the court that the will was lost rather than destroyed and if they can do so then the details of the lost will could still be taken as being the final wishes of the deceased. In some cases, where there is no valid earlier will, the judge may decide to rule that the will was destroyed and the intestacy rules would then come into effect.
There are two main reasons why wills are contested. The first is due to someone being convinced that a will is invalid and the second is due to a dependent being left out of the will altogether when they have a legal right to be included. These cases have a high chance of success as a dependant should have been included in the first place because a dependant does have a legal right to continued support from the deceaseds estate even after the testator dies.
Those who have been supported by the deceased prior to death may be entitled to continuing support from the deceased's estate. If a dependant has not been properly provided for under the terms of the will then an application challenging a will may be made to a court of law to effectively re-draw the will to ensure that adequate provision is made for a former dependant of the deceased. In certain circumstances which may include application by a spouse or dependant children it is often the case that the estate is entirely distributed to the dependants and all former bequests fail, leaving nothing for the former beneficiaries. If you need guidance on challenging a will our contested probate solicitors offer free advice with no further obligation.
Our testamentary solicitors are able to lodge caveats and make application to the court for an injunction where the circumstances demand :-
An application for a caveat is lodged in the court, the purpose of which is to warn and give notice to an interested party (the caveator) that an application has been made for probate which gives the caveator time to issue legal proceedings to resolve any contentious issues. The purpose of a caveat is merely to delay the court procedure to allow sufficient time for relevant legal proceedings. If the caveator does nothing after receiving notice, then the caveat will eventually expire thereby allowing the original application to proceed.
An injunction is an emergency court order the purpose of which is to stop someone doing something or to compel someone to positively do something. Application may be made on notice to the other side but is more often made ex-party without notice to the other side, on an emergency basis. The most common reason that a contentious probate solicitor will make application for an injunction relates to prevention of the distribution of assets by an administrator or executor in a disputed claim or to prevent unlawful interference by a third party who has no business intermeddling in the estate.
Where there is no will, the intestacy rules come into play which determine the order of priority of the closest living relatives who are entitled to share the deceased's estate. The intestacy rules do sometimes give rise to dispute. Generally, one of those entitled to inherit applies for a Grant of Letters of Administration to collect in and distribute the estate in accordance with the intestacy rules. There may be situations where potential beneficiaries disagree with either the appointment of the administrator or the appointed administrators actions and in those circumstances our contested probate solicitors are able to assist by taking legal action in a court of law.
The person named as executor in a will must apply to the Probate Registry for a document known as a Grant of Probate which gives the executor legal authority to manage the deceased's estate and distribute the assets according to the terms set out in the will. Individuals often select a friend or family member to serve as executor, but you can also appoint a solicitor, bank or accountant to fill the role. Most private individuals have little knowledge of the role of executor, so they employ a wills and probate solicitor to assist them. A testamentary lawyer can handle the large amount of paperwork required of executors. Working with a solicitor can also help reduce the possibility of a legal action being brought by an unhappy beneficiary.
A testator usually appoints up to four executors in a will. The person given the responsibility can be a professional person (or organisation) including a solicitor, accountant, family member, personal friend or a bank. An executors duty to the beneficiaries is to carry out the wishes of the deceased exactly in accordance with the instructions in the will which may also give that person wide powers in regards to collection and distribution of assets. In the majority of cases, the executors duty will be effectively exercised by a wills and probate solicitor appointed to act on their behalf.
Only after the issue of a Grant of Probate does the role of executor carry any real authority. Thereafter the executor is entitled to manage and distribute the deceased's assets in accordance with the instructions in the will. Managing the estate may involve much more than just distributing inheritances to beneficiaries. The role of executor may also involve having to pay off liabilities, sell property, liquidate shares and call in the balances on bank accounts. Distributing the residual estate to the beneficiaries as specified in the will is the last step. Extreme caution must be exercised throughout the process because the role of executor carries with it a personal responsibility and personal financial liability to the beneficiaries and for ensuring that the estate�s tax burdens are met.
If the deceased has not made a will or has made a will which does not appoint an executor then someone who has a potential interest in the assets of the deceased will make an application for a Grant of Letters of Administation which places that person in a similar position to the recipient of the Grant of Probate with very similar rights and duties.
Wills and probate are a complicated area of the law. The application for the grant of probate, in particular, is a complex process requiring an in-depth accounting of the deceased�s assets and finances. The proposed executor begins the process by assessing the deceased�s outstanding debts and liabilities. This initial financial evaluation also includes valuing all of the assets, including the deceased�s bank accounts, real property, personal property and any relevant income from life insurance policies. After the assessment has been completed, the proposed executor applies to the Probate Registry of the High Court for a Grant of Probate. Upon application, the proposed executor must submit an account of the deceased�s assets to the Capital Taxes Office which determines whether inheritance tax is due.
The next step is for the proposed executor to swear an affidavit detailing the deceased, their death and the value of the estate. The original will (not a copy) must be submitted along with the affidavit in support of the application. The Registry then reviews the application and issues the Grant of Probate. Once the Capital Taxes Office has had an opportunity to fully review the executor�s account, the executor may be contacted for more information before the figures are approved. Should those figures change, it may be necessary for the executor to submit an amendment to the account. The precise value of the estate is a critical issue because tax becomes payable if the estate exceeds the current limit.
Finding the right solicitor to handle a probate case is not an easy task. There are so many factors to take into consideration, not the least of which is whether the solicitor has the courtroom experience to deal with the potential litigation involved in objecting to probate. The problem is that most solicitors deal with either contentious cases or non-contentious cases. Few deal with both, which means it can be difficult to find a solicitor who can both draft legal documents such as a will and also litigate in a court of law. Contentious cases are often handed over to the litigation department of a legal firm which is more equipped to handle business disputes than contested wills. In that scenario you�ll likely face more expenses and longer delays.
Our contested probate solicitors offer initial legal advice, at no charge, relating to challenging a will, without any further obligation. If you would like to speak to a specialist lawyer just call the helpline or complete and send the contact form or email our offices. A solicitor will discuss your matter over the telephone and will advise on your legal right to protect your position. If, after talking to us, you decide to proceed no further you will receive no bill and we will not harass you for any further instructions.