Contested Wills, Estates and Trusts

FAQs

• What are the grounds for challenging a Will?

  The validity of a Will can be challenged on the basis that the person making it did not sign or have it witnessed properly, they did not know or approve its contents, there was some form of undue influence over them or they did not have capacity to do so.

• Who can challenge a Will?

  Someone who benefits under an earlier Will can challenge a Will.  If there isn’t an earlier Will, a person who would benefit under the Intestacy Rules can bring a challenge.

• What happens if a will is found to be invalid?

  If a Will is found to be invalid, then the prior Will properly executed by the deceased will be the one that is valid and to be acted upon, as long as that Will has not been separately revoked. If there is no prior Will, then the Intestacy Rules will apply.

• What are the Intestacy Rules?

  The Intestacy Rules are set out in legislation and provide the order of priority of individuals who would inherit an Estate (or part of it) in the event that a person has died without a Will.

  The rules set out which class of relative would inherit and their entitlement depends on the value of the Estate, whether the deceased was married or had children and whether any other people might have had the same relationship to the deceased.

• What is a caveat?

  This is a document lodged at the Probate Registry to prevent a Grant of Probate being issued.  It is used when the validity of a Will is being challenged or when there are concerns as to whether an Executor is a suitable person to administer an Estate.

• What is an Inheritance Act claim and who can bring one?

  This is a claim brought under the Inheritance (Provision for Family and Dependants) Act 1975, sometimes referred to as the 1975 Act.  An Inheritance Act claim can be brought by a person who does not receive reasonable financial provision under a Will (or under the Intestacy Rules if there is no Will).

  The person bringing the claim must fall within one of the categories provided for in the Act, for instance as a spouse, a cohabitee of more than 2 years or as someone who has been maintained by the person who has died.

  A person may not realise they have the ability to bring an Inheritance Act claim to ask the Court to vary the provisions made in the Will and legal advice should be sought as soon as possible.

• What are the time limits for bringing an Inheritance Act claim?

  Claims should be issued at Court within 6 months of a Grant of Probate being made.  Whilst there is the ability to ask the Court to extend this deadline if circumstances justify, it is sensible to ensure claims are brought within this 6 month period. If not, and the Court does not allow an extension, the claim will not succeed.

• Who pays the costs of any claim?

  The payment of costs depends on a number of factors, including the type of claim, the conduct and position adopted by the parties and importantly whether one of the parties has succeeded over the other.

  However, as a general rule, the losing party pays the winning parties costs, subject to the assessment of those costs as to reasonableness and proportionality by the Court.

  As there is a risk in any litigation, we will discuss with you whether you wish to take out an ‘after the event’ insurance policy to cover the payment of any adverse costs awarded against you should the claim be unsuccessful.

• What are the duties of an executor?

   

  The duties are defined by legislation and include the following:

   

  • Making funeral arrangements.
  • Preparing a complete list and valuation of all the testator's assets and liabilities.
  • Protecting all the assets of the Estate against theft, fire, loss and any other destruction.
  • Advertising for creditors of the Estate.
  • Paying all outstanding debts including funeral expenses, estate administration expenses and taxes, before distributing the Estate to the beneficiaries.

• What can be done if the executor is not fulfilling their duties?

  Beneficiaries have many options available if an executor is not carrying out their responsibilities.  The appropriate route to take can depend on what the executor has done (or has not done).

   

  We have had experience in dealing with a wide variety of complaints against executors including executors not communicating, executors not taking any action to administer the estate, keeping estate assets (or moving into a property owned by the estate), executors acting against the interests of beneficiaries and executors failing to progress the administration in a prompt manner.

   

  Many disputes can be resolved by removing the executor from their role and replacing them with a more suitable person.  In other cases, the executor can be compelled to provide information to the beneficiaries of the estate which often has the effect of encouraging them to finalise and distribute an estate.

• How can I remove an executor?

  The Court has a discretionary power to terminate the appointment of an executor or appoint a substitute, but it will not remove the executor lightly.  Evidence is required to show why the executor is unsuitable to continue in the role, which the Brabners Contentious Probate team can advise upon and help to gather.