Contesting a will after probate

If you think you have valid grounds to contest a will, but you are concerned that probate has already been granted, then you must act quickly. The first step is to notify the executors of the will of your potential claim to seek their agreement to refrain from distributing any assets pending the resolution of your claim.

Can a will be contested after probate?

In a word, yes. However, it is more challenging to make a successful claim once the deceased's assets have already been distributed, and additional costs will likely be incurred. Notifying the executors of the will about a potential claim before the estate is distributed is a far more straightforward process. The longer the delay, the more likely the estate will have been distributed.

Can anybody view a will after probate?

Only the named executors can view a will before probate has been granted. However, once probate is granted, the deceased's will becomes a public document that anyone can view by applying to the Probate Registry.

Legal reasons to contest a will after probate

The fundamental principles upon which you can challenge the validity of a will are the same regardless of whether the executors have obtained the grant of probate or not. To challenge a will, you must first have the requisite "legal standing" to challenge a will, i.e you must have a direct interest in the outcome, whether you are a beneficiary of a previous will, or if there is no earlier will, you must be a beneficiary under the laws of intestacy. This is because the terms of any previous will or (if there is no prior will) the laws of intestacy apply if you successfully invalidate the will in question.

There are five main ways in which to challenge the validity of a will:

• Lack of formality – the will must be made in satisfaction with Section 9 of the Wills Act. If it hasn't been signed and witnessed correctly, then it will be invalid.
• Lack of capacity – The person making the will must have the requisite mental capacity to execute the will. If, for example, they had dementia when the will was executed, then the will could be invalidated.
• Knowledge and approval – If the person making the will didn't fully understand and approve the terms of the will, then the will may be invalidated.
• Undue influence – The person making the will must have made the will of their own free will, and if a third party has forced them to create a will contrary to their wishes, then the will may be invalidated.
• Fraudulent calumny – a will can be invalidated if a third party has told lies about the character of another, and the person making the will excludes that party in reliance upon those lies.

What makes contesting a will after probate more difficult?

When probate is granted, the court has already recognised the will as valid and given the executors the legal authority to deal with the estate.

On a more practical level, executors often begin distributing assets soon after they receive probate. Most straightforward estates are administered and distributed within 12 to 18 months of the date of death. Once assets have been passed to beneficiaries, retrieving them is a lot more complicated.

The challenges you may face include:

• Assets may have already been transferred to the people named in the will
• New owners of estate property may have legal protection if they bought in good faith
• You will need to apply to the court to revoke the existing grant of probate
• Legal costs are typically higher due to the more complex procedures
• You could be liable for damages if your challenge is unsuccessful

How do I contest a will after probate has been granted?

The way that you may seek to invalidate a will depends on the ground of challenge. Typically, the process will involve gathering appropriate evidence, which might include:

• Obtaining a copy of the will file.
• Obtaining copies of medical records.
• Collecting witness accounts from those who knew the deceased and/or who witnessed the will.

It is essential to gather the relevant evidence to support your claim. Once you have collected the necessary evidence in support of your will challenge, you would need to issue a claim at court seeking an order for the revocation of the erroneous grant of probate on the basis that the will in question was invalid.

Revocation of the Grant of Probate

By reason of the grant already being issued in the estate, it would be necessary to issue an application at court seeking the revocation of the existing grant of probate on the basis that the will was invalid. If approved by the Court, the application would see to the invalidation (or revocation) of the grant of probate. It would allow the correct personal representatives to obtain the appropriate form of probate.

Protecting your position while building your case

Given the urgency involved, you should take immediate steps while you gather evidence for your challenge.

First, send a formal letter to the executors explaining your concerns and asking them to stop all distributions until your claim is resolved. You should also ask for a complete list of estate assets and details of any distributions that have already been made.

What happens if assets have already been distributed?

If the executors have already given assets to beneficiaries before your challenge succeeds, recovering those assets becomes much more complicated. The process involves complex legal rules and may be affected by the rights of third parties.

Some of the difficulties include:

• People who bought property from the estate in good faith may have legal protection
• Beneficiaries who received money or assets may have spent or invested them
• You may need to trace assets through several transactions
• There may be time limits that prevent you from recovering certain assets
• Some beneficiaries may not be able to afford to repay what they received

When do I need to bring my challenge?

Although there is no limitation on your ability to challenge a will via these types of claims, the outcome is more likely to be favourable the sooner you act. This is particularly important if a Grant of Probate has been issued, as, typically, simple estates are administered and distributed within 12 to 18 months of the date of death, so it is highly recommended to obtain legal advice at the earliest opportunity.

How long will it take?

The duration of a will dispute will vary (depending upon the conduct of the people involved and the extent of court involvement required), but it can typically take 12 to 18 months to obtain a final order on a case.

When to take legal advice

The complexity involved in challenging a will after probate has been granted means you should seek professional legal advice as soon as you become aware of any concerns.

We can help you:

• Determine if you have viable grounds for a challenge.
• Choose the best legal approach given that probate has been granted.
• Take immediate steps to protect your interests.
• Gather the proper evidence in the correct format for court proceedings.
• Handle the court procedures needed to revoke a grant of probate.

Remember, every case is unique, and seeking professional legal guidance is recommended to understand the specific legal requirements and potential implications of contesting a will after probate has been granted.