WHAT HAPPENS WHEN A WILL IS CONTESTED ?
The following are questions that we are frequently asked regarding contesting a Will.
So you’ve established that you might have grounds to contest a Will – what happens next?
The first and most important step is to take legal advice. There are strict time limits for making a claim and your lawyer will be able to ensure these are complied with. Fill in the form below to start the process.
Once you’ve taken legal advice, the next step will be to obtain a copy of the Will as quickly as possible. Don’t be surprised if the Executors refuse initially – even if you were close to the Deceased. There is no legal requirement for the Executors to give you a copy, but there are protocols which dictate that providing a copy will help to resolve disputes quickly and with the least expense. If the Executor does refuse to disclose a copy of the Will, a letter from your lawyer will usually convince them to provide a copy. Your lawyer will point out that if the matter should go to Court, the fact that the Executor did not provide a copy will be brought to the attention of the Court which could have consequences (particularly in relation to who pays the legal costs in relation to the claim).
Should the Executor still refuse to provide a copy of the Will, it is possible to issue a caveat against the estate which prevents a grant of probate from being issued until the dispute has been dealt with.
A caveat is used to stop the grant of probate or letters of administration from being issued by the Probate Registry where there is a dispute about an estate. Caveats can be issued whether or not there is a Will. The caveat enables the ‘caveator’ – the person who has entered the caveat – to carry out further investigation of whether there are grounds to contest the Will. Examples might include:
- Concerns that the Deceased was unduly influenced in making the Will
- Concerns that the Deceased did not have the mental capacity to make a Will
- Concerns that the Will or signature was forged
- Concerns that the Deceased’s assets will not be disposed of in accordance with the Will
- Concerns that the Deceased did make a Will which has not been presented
To issue a caveat, an application is made to the probate registry. This can be done relatively quickly. Once issued, the caveat lasts for 6 months but if necessary this can be extended. The extension needs to be made in the month prior to its expiry.
After the caveat has been issued, your lawyer will continue to investigate whether you have grounds to make a claim against the Deceased’s estate.
If the Executors or Administrators disagree with the caveat, they can apply to serve a ‘Warning’ on the Caveator which requires them to send an ‘Appearance’ to the Court within 8 days. The ‘Appearance’ will set out the grounds on which the caveat has been issued. If the Caveator fails to enter the Appearance with the Court, the Executors or Administrators of the Deceased will be able to apply for grant of probate/letters of administration and deal with the estate as normal.
If the Caveator does enter an ‘Appearance’, the caveat will then remain in force until the dispute has been resolved. Your lawyer will work with you to try and negotiate with the parties involved and resolve the issue, without needing to go to Court. Sometimes, an application to the Probate Registry for a directions hearing may be necessary. If the dispute cannot be agreed, formal court proceedings may begin.
What happens if I am successful?
If you successfully challenge a Will and the Will is declared invalid, the previous valid Will stands in its place. If there was no previous Will, the rules of intestacy will apply.
If you successfully make a claim under the Inheritance Act (i.e. for reasonable financial provision), the Court will decide how much of the estate you are entitled to.