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Contested Probate & Challenging a Will - Australian Solicitors & Lawyers
Matters relating to disputed wills are often referred to as contested probate as the first real opportunity to take legal action arises at the time an application is made for the Grant of Probate. An aggrieved party's solicitor who wishes to take legal action should, shortly after death, file a document that requests the issue of a probate caveat. The effect of a caveat is to warn the person who made the submission, known as the caveator, that an application for a grant has been made thereby giving the caveator time to take legal action by the issue of proceedings prior to any grant being issued.
Disputing a Will
Once a contested probate action is started there can be no disposal of assets until such time as matters relating to the will have been resolved which may involve issues of execution, validity and provision for dependants. A caveat gives minimal warning and legal proceedings by a solicitor must be issued in short order once notification of an application for a grant has been received. In addition a caveat has a limited life and must be periodically renewed if it is to have effect over the long term. Once proceedings have been issued the matter proceeds to trial before a Judge if resolution on an agreed basis with the consent of the parties and their solicitors cannot be reached.
The starting point in any contested probate action is to consider whether or not the will was executed in accordance with legal requirements. The testator must be adult, of full mental capacity, must understand the consequences of their action and must not have been subject to any undue influence. If the testator was elderly at the time of execution of the will these matters should be considered in detail as dementia often invalidates a will. In addition the will must have been signed by the testator usually in the presence of two witnesses who must be present at the same time who must also sign the document. It is worth interviewing witnesses as a testator frequently takes a will to two neighbours at a different time to obtain their signatures which invalidates the document as a will.
Probably the most frequent cause of legal action for contested probate relates to a will making inadequate provision for dependants who have a right to contest the will to establish their share of the assets. A typical scenario involves a divorced husband who leaves all of his assets to his new wife whilst not making any provision for responsibilities accumulated from a previous relationship.
Lost or Revoked
Another area of contested probate relates to issues surrounding a beneficiaries attempt to obtain a Grant of Probate based on a copy will when the original cannot be located in which case beneficiaries of an earlier will often object making the allegation that the later will was not lost but was revoked by the testators deliberate destruction.
Solicitors Legal Advice
If you need to consider legal action in these matters you should contact our solicitors today. Our lawters can provide you with free legal advice about your case and all matters related to wills and probate. The consultation is completely free and confidential, and speaking with one of our solicitors does not obligate you to use our services.HELPLINE: ☎ 1800 455 886