Wills and their contents can prove a highly emotional issue for some families. In the midst of grieving for a loved one, finding out that their wishes didn’t tally with your expectations can be a shocking and upsetting thing to deal with. If you feel that there has been a genuine mistake or misunderstanding, there are ways in which you can contest a Will and seek legal help to try and rectify the situation.
Where’s the Will?
First thing’s first – if you wish to contest a Will, you must have access to the original version so that you know exactly what is written in it. Although a person is perfectly entitled to keep his or her Will private before they die, it becomes a public document from the moment that it is filed in a Probate court. That means that anyone is entitled to read it once Probate has occurred and can therefore apply to the court for a copy. The clerk of the court can help you do this. Prior to Probate you may also be able to ask the Will’s executor for a copy.
Depending on how long ago the Will was granted Probate, it might be filed in digital format, as a paper copy or on microfilm. Being able to obtain the ‘official’ Will in this fashion is very important in cases when suspicions exist around the validity of any copies of the Will in the possession of a family member, or when someone is claiming that the person left no Will at all.
Disputes and disagreements
Inheritance disputes like these tend to fall in to one of several well-worn categories. They can include sibling disputes, family members being disinherited, questions being cast over the mental capacity of the testator, (person who wrote the Will), suspicions of fraud or forgery and concerns over someone having undue influence over the contents and instructions written into the Will.
The question of mental capacity is an interesting one, as the person doesn’t have to have been deemed 100% mentally alert. They simply have to have been considered able to understand what a Will is, to know what their assets are and to understand and agree to the arrangements made in the Will for their distribution.
If your issue falls into any of these categories, or you have a different cause for concern, it’s important to act fast. Preferably before Probate is granted, as this will involve a great deal more paperwork and time to unravel. It also stops memories form growing dim over time, or people misremembering vital facts or conversations held in the increasingly distant past.
Contesting the Will
If you believe a Will to be legally invalid for any of the reasons listed above, you are entitled to contest it, lodging a caveat that prevents Probate from being granted until the issue is resolved. However, this can be a costly option that requires professional legal advice and ongoing support, so you should make every effort first to resolve any concerns privately with the deceased person’s family and friends. Contesting a Will is a serious business – you can’t demand a reallocation of funds if you have simply been left out of a valid Will.
While most Wills tend to be upheld after being contested, if a court agrees with your claim of invalidity, there are a number of outcomes that could follow. The entire Will could be thrown out and the arrangements for the deceased person’s estate revert back to an earlier Will. Where there is no other Will in existence, the estate may be divided and distributed according to intestacy law. Or, the court could order just the contested parts of the Will to be struck out, leaving the executor to work out how to sort out the remaining sections.
If the situation cannot then be resolved due to ongoing family disputes, the court can step in again to make the final decisions.