Challenges in Contesting a Will After Probate

Challenges in Contesting a Will After Probate
Mick Grant
Mick Grant

Founder and Writer

A Will details how the testator’s property and other valuable assets will be distributed amongst his/her heirs. Testamentary Wills are thought of as the final say of the decedent, making sure it is executed the way the testator wants it to be is paramount. In the event a beneficiary is not happy with his share of the assets, he/she should contest the Will within six months in order to raise the chances of legitimizing your claim. Most families are content with their share of the property. It is only when family members feel that they have a claim over certain assets that they contest a Will.

Grounds for Contesting a Will During Probate

There are many grounds for contesting a Will. Read the following points which illustrate when one can contest a Will after a grant of probate:

1. Lack of Testamentary Capacity

This is when the claimant has reason to believe that the testator does not have the reasoning capabilities and the mental capacity to make a will. There are several reasons because of which a testator may not have had the mental capacity to create a Will. Mental illnesses ranging from psychosis to schizophrenia have the tendency to incapacitate the logical reasoning of a person. Dementia and Alzhimers could possibly also contribute in the same manner. Under this pretense, unhappy beneficiaries can contest a Will. 

2. Coercion

Family feuds habitually occur when a testator’s family is unhappy with the division of the property. In many instances, heirs are known to subject a testator of the family to blackmail in order to get a more profitable asset. For example: a family member of the testator influences the Will-maker to draft the will in the favour of the family member with malicious intent. This is a crime and its effect on the probate grant will result in an inequitable division of valuable assets.

3. Improper Execution of The Will

The administration of a Will is key in ensuring an equitable distribution of the assets. Administration of the estate undergoes massive changes when a testator dies intestate. Intestacy laws make the court responsible for dividing and alloting of the property. Since a testator of the family will know best who to allot which asset to, a court doing the same will not be as efficient. When intestacy laws come into effect, the probate process increases in duration because additional documents will need to be drafted. After a probate grant, if a beneficiary or legatee believes they are entitled to more assets, then they can contest the Will on grounds of inefficient execution of the Will.

The Executor and The Estate

The time limit of this claim’s filing and documentation is 6 years from the date of the breach of probate. This claim is a common problem in Will disputes & resolutions. It occurs when an executor improperly executes a Will. Bad representatives get greedy and keep an unfair amount of estate money. This estate money usually comes out of the assets of the beneficiaries. Executors sometimes fail to pay out estate money, creating more of a tax burden on the heir. The main point for having a Will is to give the heir property with certain reductions on tax. Poorly planned and executed estate plans result in more mishaps in the probate process. It is pertinent that a trustee furnishes documents to beneficiaries in good faith. Always remember that an executor is personally liable for not carrying out his duties. 

Risks  Of Contesting Probate

A client risks contesting and winning against a Will the longer he/she waits it out. It is best to contest when the probate has not been granted. As a result, it would be a time-effective affair and would not result in a wrongful allocation of property. Once contested in the duration of the probate grant, the property will be divided immediately. The risk of applying for stopping the grant of probate is that court proceedings can be issued against you too. 

Final Thoughts 

Contesting the probate process is an expensive affair and creates additional complications in the probate process. However, one should seek legal help if they believe they are entitled to specific valuable assets. A decedent should ensure a trusted executor administers the estate in good faith. Beneficiaries are legally capable of contesting the essence of the Will based on the mentioned grounds. The main reason why Probate exists is to ensure that parties get the property they are entitled to.

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