Contesting a will is often a complex and emotionally taxing process, even more so when the will has already undergone the probate process.
But can a will be contested after probate? The simple answer is yes, although the circumstances and laws governing this action can vary greatly depending on your jurisdiction.
In the ensuing discussion, we will explore the legal aspects surrounding contesting a will after probate, the grounds on which a will can be challenged, the strict timelines within which these actions must take place, and the potential financial and emotional consequences involved.
What is Probate, and What Does a Grant of Probate Mean?
Probate is a legal process that verifies the validity of a deceased person’s will and oversees the distribution of their estate.
It involves identifying the deceased’s assets, settling any debts, and distributing the remaining assets as per the will. The estate is distributed according to state intestacy laws if there’s no will.
A Grant of Probate is a court-issued document that gives the executor, named in the will, the authority to manage the estate.
This includes managing assets, paying debts, and executing the distribution of the remaining assets to beneficiaries as per the will. Without this grant, the executor can’t legally administer the estate.
Can A Will Be Contested Even After Probate Has Been Granted?
Yes, a will can generally be contested even after probate has been granted, but the process becomes more complex and challenging.
The laws governing this action can vary greatly depending on the jurisdiction, and there is often a strict timeline within which a will must be contested post-probate.
The reasons for contesting a will after probate are typically the same as those for contesting a will before probate, including allegations of fraud, undue influence, lack of testamentary capacity, or improper execution of the will.
However, once probate has been granted, contesting a will usually involves another step: getting the Grant of Probate set aside or revoked.
This typically requires showing serious irregularities or mistakes in the original probate process. It is generally recommended to seek the advice of a knowledgeable will lawyer when considering contesting a will, especially after probate has been granted, due to the complexity of the process and legal procedures involved.
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Can a Will Be Contested After the Assets Have Been Distributed?
Contesting a will after the assets have been distributed is possible, but it can be significantly more complex than contesting before distribution. This is mainly due to the practical challenge of retrieving the assets already distributed to the beneficiaries.
Once money is spent, it is hard to get back.
The time limits for contesting a will in Queensland are strict.
You generally have six months from the date of the deceased person’s death to notify the executor of your intention to contest the will and 9 months to commence proceedings.
What Are The Conditions To Contest A Will After Probate?
Contesting a will after probate typically requires one or more of the following grounds:
- Lack of Testamentary Capacity: This refers to the mental ability of a person to make a will. If the person who made the will (the testator) could not understand the nature of their actions when making the will, it could be contested. An illustrative case that a will can be contested involves a testator with dementia.
- Undue Influence: If the testator was pressured or coerced into making a will or specific provisions, the will could be contested based on undue influence.
- Fraud or Forgery: If the will is suspected to be the product of fraud, deception, or forgery, it could be contested. This may involve situations where the testator was deceived about the content of the will or where their signature was forged.
- Improper Execution: Wills must be executed in line with particular legal formalities. It may be contested if the will needs to be correctly signed and witnessed.
- Revocation: It can be contested if there’s evidence that the testator revoked the will. This requires demonstrating some serious mistake or irregularity in the original probate process.
Why Might Someone Choose to Contest a Will After Probate?
There can be various reasons why someone might choose or need to contest a will after probate, and these include:
Late Discovery of Information
Sometimes, potential claimants might only discover information that gives them grounds to contest the will after probate has been granted. This could be new evidence of undue influence, fraud, or testamentary incapacity that was unknown or available before probate.
Late Awareness of Rights
Some potential beneficiaries may only be aware of their legal rights to contest a will after probate has been granted, especially if they were not adequately informed about the probate process.
Irregularities in the Probate Process
If there were irregularities, mistakes, or fraud in the probate process, these may only become apparent after the Grant of Probate is issued. In such cases, contesting the will to rectify these issues might be necessary.
Inadequate Provision
In some jurisdictions, if a person feels that the will does not make adequate provision for their maintenance and support, they can challenge the will, even after probate. These are often known as family provision claims or inheritance disputes.
What are the Legal Steps for Contesting a Will After Probate?
Here’s a general outline of the process:
- Consult a Solicitor: Given the legal complexity of contesting a will, seeking legal advice is advisable. An attorney can help you understand whether you have a viable will dispute case and guide you through the necessary steps.
- Establish Grounds: Identify the grounds on which you plan to contest the will. These might include a lack of testamentary capacity, undue influence, fraud, or improper execution of the will.
- Apply to Court: You’ll need to apply to the court to have the Grant of Probate revoked or set aside. This usually involves filing specific legal documents and providing evidence to support your claim.
- Court Proceedings: After the application is filed, court proceedings will begin. This might involve initial hearings, the exchange of evidence, potential negotiations for settlement, and, if necessary, a trial. If the court finds it in your favour, the Grant of Probate may be revoked, and the will declared invalid. Alternatively, the court might amend the distribution of the estate.
- Distribute the Estate: If the will is declared invalid, the estate will be distributed according to the rules of intestacy or according to a previous valid will if one exists.
Helping A Client Get the Answer to the Question: Can A Will Be Contested After Probate?
Our client approached Walker Pender with a complex situation. She had discovered a significant discrepancy in her late father’s will, but unfortunately, this came to light only after the probate had been granted.
The discrepancy suggested undue influence exerted on her father, prompting a significant change in asset distribution.
Despite the probate, we assisted her by gathering essential evidence, identifying witnesses, and building a robust case of undue influence.
Can A Will Be Contested After Probate?
Walker Pender is your reliable guide. Let our experienced solicitors navigate complex probate disputes and provide clear advice.
Don’t let unresolved issues burden your family. Contact us today to defend your interests and inherit what’s rightfully yours.
