After someone’s death, you may find that he or she made a mistake when making a will. As a spouse, child or dependent, you may be surprised that the testator didn’t leave you with what you are entitled to. You can also seek to make the will invalid based on how it was executed. However painful it might be, you have the opportunity to seek justice. This is done by contesting a will.
It is a process that should be well thought of as it can be grueling if there exists bad blood between aggrieved parties. Contesting a will is done in a court after you fail to reach an agreement as a family or parties involved. Before you can start the process, you must know what the procedures are. Before you think of initiating the procedures, you have to be the right person doing that. Otherwise, you would be engaging in a futile exercise.
Who can contest a will?
If you are making a contest because you have not been well provided for, you will have to be a close relative or a dependent of the deceased. This means that you can be a spouse, a child, a grandchild or person whose livelihood was being taken care of by the testator for a period of not less than two years before a testator’s death. If you are not among this class of people, then you can only contest the will by declaring it invalid. A will can only be invalidated if it did not follow the procedures of a written will as per the law.
The contest procedures
So you now know why you can contest a will and who you need to be to legally initiate a contest. It is now time to start the process. Not unless you are a legal mind in this field, it is highly recommended that you seek the services of legal specialists who have the experience of how to go about the whole process.
1. Getting a caveat
This is usually the first thing that a solicitor will advise. Getting a caveat will prevent executors of a will from getting a Grant of Probate which will give them the legal mandate to start administering an estate. At times, getting a caveat before probate has been granted is a risk. A court could issue proceedings against the person seeking the caveat.
After a caveat has been sought and granted, your legal representatives will then scrutinize the will. They will get the details of the estate which includes assets and liabilities. These are details of properties, shares, debts and get their net worth. It is then checked whether probate has been applied for or has already been granted.
Information is also sought from solicitors who helped prepare the will in question. Also, medical records for the deceased will be analyzed to know whether the deceased had mental health problems. Statements will also be collected from appropriate witnesses.
A polite letter is then sent to the executors for them to furnish your legal team with all details of the estate. In most cases, the letter also seeks to know if the executor is open to settling the matter without involving a court.
3. Taking a written statement
If it established that you have a legitimate claim and the executors do not wish to settle, you write a statement. This statement details your relationship with the testator. It also includes information on your current financial status and health details for you, your spouse and your dependents.
4. Initiate court proceedings
In this stage, the court is notified that you wish to make a claim. This is done in form of summons filed in court. A file for your claim is then opened. You will then be given a date by the court when you will attend for a directions hearing. A date for a directions hearing is, in many cases, within a month from the date a summon was filed.
5. Setting a mediation date
On the date of the directions hearing, a judge will open your claim file and ask your lawyers any questions he or she deems relevant. No hearing takes place on this day. The judge then advises the lawyers on how to prepare for mediation. This serves to ensure that all information will be available to help in the mediation process.
6. Attending mediation
This is the final stage of a will contest and this is where nearly all claims are settled. Mediation does not usually take place in front of a judge. You will attend mediation accompanied by both your barrister and solicitor. The executor also attends together with his barrister and solicitor as well. The other party that has to be present is an officer of the court. Lawyers will then do the discussions on your behalf and, as such, you will not be required to talk. Most claims are settled in mediation and not unless you fail to agree, a judge will never be involved in the process.