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Disputed Will Solicitors - Challenging Probate - Australian Law Advice

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A grant of probate is a legal document that authorises the executor who is appointed under the terms of a will to deal with the estate of a deceased person in accordance with the terms outlined in that persons will. Usually at least one individual is specifically appointed to act as executor in a will however there are some wills where no executor is appointed. There are also occasions where the appointed person does not want the responsibility or is mentally incapable or has died. If for any reason the person mentioned in the will as executor is unable to perform the requisite duties which may include appointing disputed will solicitors, another person with an interest in administering the estate may step in to make application for a grant of letters of administration which also gives legal authority to deal with the estate.

An executor is the person responsible for managing and distributing the deceased's assets according to the instructions set forth in the will. The term executor applies only to a person specifically named in the will by the deceased. Otherwise the duties are performed by an administrator, a person who applies in order to fill the role when there is no will or where there is a will that fails to appoint a personal representative.

Administration of the Estate

Once the executor has been appointed by the court they will receive a document from the court known as a Grant of Probate. Most executors order several sealed copies of the Grant of Probate from the court to speed up the process of administering the estate. The executors must thereafter gather in and liquidate the assets unless certain items have been specifically bequeathed to individuals and thereafter pay all liabilities before distributing the remaining estate in accordance with the testators wishes outlined in the will.

Duties & Responsibilities

The appointment of executor carries with it substantial responsibilities and many non professional executors often do not feel up to the burden of discharging the necessary responsibility which in the case of complex wills or substantial estates can be extremely stressful and time consuming. Most executors who are not lawyers appoint a solicitor to act on their behalf to deal with the estate.

Executor of a Will

The point at which an application for probate is being considered is also the most likely time for legal action by disputed will solicitors challenging probate either by objection to the proposed executor, by questioning validity by disputing the will itself or by making application for the rights of a dependent who has not had adequate provision made in the will.

Disputing a Will

A third party may consider instructing a disputed will solicitor to object to a will and may take legal action challenging probate for any number of reasons. The starting point to challenge a will relates to execution. In order for the will to be considered valid, each of the following requirements must have been met:

  • testator old enough to execute the document
  • testator not subjected to undue influence
  • testator of sound mind and full understanding
  • will signed by two witnesses at the same time

Challenging Probate of Copy Will

The process is further complicated in cases where the original will is lost. It is possible in certain circumstances to obtain a Grant of Probate using a copy of a lost will in place of the original. In order to do so it is necessary to prove that the will is lost and not deliberately destroyed by the testator in an attempt to revoke its effect. Beneficiaries of earlier wills or dependants of the deceased sometimes take action challenging probate by disputing a will copy because they would prefer that an earlier version of the will be followed.

The Grant of Probate

Before the proposed executor can begin managing the deceased's estate, they must obtain the proper legal authority in the form of a Grant of Probate. The first step in the application process is for the proposed executor to complete a financial assessment of the deceased's estate. The assessment includes collating the deceased's assets and identifying all of the deceased's outstanding liabilities including tax and unpaid loans. The completed assessment of finances must be submitted along with the original will and a sworn affidavit which contains pertinent details about the deceased's death and estate. At the same time as the executor is preparing his application it is often the case that an aggrieved relative who has had advance notice of the wills content may be preparing documentation to instruct disputed will solicitors with the intention of challenging probate by objecting to the will in either execution or in the case of dependents in its effect.

Assets & Liabilities

An executor's real work begins once they have finally received the Grant of Probate. The executor will begin by gathering all of the deceased's assets, such as selling property and calling in bank accounts. Beneficiaries of the will do not receive their inheritance until the deceased's liabilities have been paid. Once the debts have been paid, the executor can then distribute the remaining assets amongst the beneficiaries in accordance with the terms of the will but only after paying any tax liabilities.

Solicitors Legal Advice

Our solicitors are probate experts and offer legal services regarding disputed wills and contested probate both in relation to defending claims on behalf of executors and pursuing claims on behalf of those who may feel that the will is not being administered properly or who have been cut out of a will from which they reasonably expected to benefit. For advice at no cost and without further obligation just send the contact form or email our offices or call the helpline.

From the very outset, the executor's role is a difficult one. Even obtaining the Grant of Probate is lengthy process involving in-depth financial calculations and grappling with the legal requirements for a valid will. If you are the proposed executor of a will, or if you wish to object to probate, or make a dependants application then contact a lawyer today. Our solicitors can provide you with legal representation and guidance from day one of the process. We will provide you with a confidential consultation, at no cost and with no further obligation.

HELPLINE: 1800 455 886