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Disputing a Will - Challenging Probate - Testamentary Solicitors Advice

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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.

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 a solicitor 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 solicitor to dispute a will and may take 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 solicitors with the intention of challenging probate by disputing 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

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