Losing a loved one is always a painful and emotional experience. This is not helped if you find yourself having to deal with disagreements about the will of the deceased. However, these disputes can and do occur.
If you believe there has been an error in the will of the deceased, or that the will has not been properly implemented, you may have a valid cause to challenge the will in court. The process of challenging a will is often complex, so you should seek expert advice on your situation before you proceed.
Who can challenge a will?
Under the law, anyone can challenge a will, but it is usually a person who was involved in the life of the deceased who would have a reasonable expectation of receiving a share of their estate.
These people include:
- The spouse
- Blood relatives
- Someone who was financially dependent on the deceased
- Someone who was named in an earlier will
- Someone who was promised something in the deceased’s will, but was left out
- Someone who is owed a debt by the deceased
What are the grounds for challenging a will?
There are two main arguments for challenging a will; either the will is invalid, or it fails to make ‘reasonable financial provision’ for a family member of someone who was financially maintained by the dependent.
The legal grounds for challenging a will are as follows:
- Lack of testamentary capacity: The deceased was not of “sound mind, memory and understanding” at the time the will was made.
- Undue influence or coercion: Someone forced the deceased to change their will against their wishes. This can be very hard to prove.
- Lack of knowledge and approval: The deceased did not understand and authorise the contents of the will. This may be because at the time the will was made, the deceased was deaf and/or dumb, blind, illiterate or paralysed. It may also be because the deceased was not aware of the will’s existence.
- Wills Act 1837: The will does not comply with section 9 of the Wills Act (1837), which stipulates that the will must be in writing, signed by the person making the will, and witnessed by two people.
- Forgery and fraud: The will itself, or the signature on the will is forged. A fraudulent will is one that includes provisions that go against the wishes of the deceased.
How long can a will be challenged?
If you’re making a claim for reasonable financial provision, you have six months from when the probate is granted (the time when the will is legally accepted).
If you’re challenging the validity of the will, there’s no time limit. Nevertheless, it’s advisable to act as quickly as possible before the estate is distributed to the other parties.
How to challenge a will?
If you are considering challenging a will, you should seek expert advice as a matter of urgency to validate your claim and confirm you are within the legal time constraints.
The next step would be to submit a formal claim, known as a ‘caveat’ to the Probate Registry office. This will ensure the deceased’s money and estate cannot be distributed without first notifying you and resolving the dispute.
The caveat lasts for six months and can be renewed where applicable.