In the fourth of our Wills and Estates 101 series, we speak with Rigby Cooke Lawyers Wills and Estates Special Counsel, Christian Teese, to answer questions around your rights to challenge the validity of a Will.
Your Rights to Challenge
The death of a close family member is not only harrowing on a personal level but can also present complicated legal challenges. This is especially the case for people who are not executors of an estate and where there is a dispute or some lingering doubt about a Will. If you have suffered the loss of a close family member, it is important you understand that legal advice can assist to resolve disputes or doubts which may exist and to protect your rights when they are most vulnerable.
One of the most important times to get advice is when you become aware that someone has either advertised an intention to apply for probate or actually made an application for probate. You may have a right to formally object to a grant of probate being issued where:
- you are aware that there is a later Will or some act by a testator revoking a particular Will; or
- the testator did not have testamentary capacity at the time of executing his or her Will; or
- the testator was subjected to undue influence in executing his or her Will; or
- the signature which appears on the testator’s Will was forged.
If you are concerned that any of the matters set out above may apply to your particular circumstances, you should act quickly and seek legal advice about lodging a caveat. A caveat is a document which effectively prevents any action from being taken in relation to a person’s Estate without prior notice being given to the person who lodges the caveat. In cases involving Wills, the caveat is known as a ‘caveat against the making of a grant’.
Lodging a caveat promptly will give you an opportunity to take steps to object to an application for probate of a Will before the grant is ever issued. This is usually done by preparing evidence to draw the Court’s attention to the particular facts and may result in an application for probate of the offending Will being refused.
If you are concerned that any of the matters set out above apply to your particular circumstances, but a grant of probate – or letters of administration – has already been issued, all is not lost. There is a process available to apply to revoke a grant of representation, although it is generally a more costly exercise than taking steps prior to a grant being issued.
The most important thing to remember is that there are processes available to protect people’s estates from being distributed in a manner contrary to their intentions. These processes also extend to the provision of information – such as a Will. If you have questions, concerns or doubts about any issues affecting the estate of a close family member, seek legal advice early and satisfy yourself that their intentions, and your rights, are being protected.
Rigby Cooke’s Wills and Estates team is well placed to assist you should you have any questions or concerns.
|Disclaimer: This publication contains comments of a general nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional advice. No responsibility can be accepted by Rigby Cooke Lawyers or the authors for loss occasioned to any person doing anything as a result of any material in this publication.
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