Wills and Succession Planning

After a person has died, their Will may come under challenge. Challenges can take several forms, but the principal ones are:

  • A challenge to the validity of the Will itself
  • A challenge to what a Will actually means
  • A challenge to the provisions of the Will under family provision legislation

Of these, the last is by far the most frequent.

If you are the executor, or one of the executors of the Will, you most likely will be directly involved in any court proceedings. Except in cases where it is unclear what the Will means, once you accept appointment as an executor, it is your duty to uphold the Will.

 

Validity of the Will

Where the challenge is to the validity of the Will itself, it will be grant of probate of the Will that is contested.

If you are an appointed executor, you must apply for probate of the Will.

If a challenge comes, it will be your task to present whatever evidence you have to support the Will. The Court will ultimately decide whether the Will is valid or not.

Where an appointed executor may be concerned that such a challenge may be forthcoming, application can be made to the court for a Grant of Probate in Solemn Form. Most probates are granted in Common Form, which can later be set aside. A Grant Solemn Form cannot.

 

Meaning of the Will

If the meaning of the Will is contested, the executors obtain a grant of probate in the usual way from the Probate Division of the Court.

The case is then referred to the Equity Court to construe the Will as to its true meaning.

Provided that the problem with meaning has come about through the action of the Will maker, the Court will order the costs of these proceedings out of the estate.

All parties who have an interest in the outcome of the case can participate. Once determined, the executor proceeds to administer the estate as interpreted by the Court.

However, if you are aware that there is clearly a mistake in the Will, at the same time as applying for probate, or within a year of the death, ask the Court to rectify the Will so that it properly reflects what the Will maker intended.

Whilst all parties interested in the outcome are notified, unless there is a contest, the Court will rectify the Will. This will save the very considerable legal costs of a Construction Suit.

Legal costs will generally come out of the estate.

 

Family Provision Claim

Where the claim is for Family Provision, the general duty of the of the executor is to uphold the terms of the Will. Even though the claim is for provision out of the estate, the executor becomes the defendant as the representative of the estate.

As defendant, the Court rules prescribe certain evidence and documentation that the executor must provide. Frequently, the executor has no direct knowledge of the assertions of the plaintiff.

If however, the executor is personally aware of the facts and circumstances of the plaintiff relevant to the claim, they must put this evidence before the court.

The executor is also under a duty to place any other relevant evidence that can be obtained from other witnesses before the Court.

All Family Provision cases must go to mediation before being heard by a judge.

The executor is entitled, on legal advice, to settle a claim and have the Court Orders made to finish the case. Many cases are settled at mediation. If this is unsuccessful, a judge will hear the case and decide the outcome. Unless there are extraordinary circumstances, the executors legal costs are paid in full out of the estate.

Remember, Joplin Lawyers can help you in what can be very difficult circumstances. Once a claim is made against an estate and you are the executor (or one of them), it is important that you are fully advised of your rights and duties as you will be personally involved in the claim.

Joplin Lawyers can advise you in these matters and assist you throughout the course of your claim.

December 2, 2016

Defending a Will

After a person has died, their Will may come under challenge. Challenges can take several forms, but the principal ones are: A challenge to the validity of the Will itself A challenge to what a […]