Contesting a Will and challenging a Will – these two terms do not sound much different among people. However, in technical terms of the law, they are quite different. Hence, before you are undergoing any such kind of services, do not forget to ask your lawyer, the differences between the two.
Time is the main essence and in this regard to obtaining a copy of Will is very important for the preserving of the assets of the estate, and hence it will prevent from issuing probate. It will become really tough after the probate has been granted to contest a Will.
So, whether it is contesting a Will or challenging a Will, the matter is complicated for a layman.In this article, we will describe what is a contesting a Will and what is challenging a Will to make you understand the difference between the two.
What Is “Contesting A Will” Means
Despite the deceased being a close family member, the executors are not allowed to reveal a copy of the will. Where for the Executor there is an absence of legal entitlement thus for the resolving of amicable and quick disputes, operations of clear protocols encourage parties for the disclosure of documents.
The sensible instruction is to tell the solicitor if there is any willingness to challenge a Will. For the disclosing of Will, a specific legal letter can be sent to the executor as a warning. If the Executor fails to show the Will, then he will have to undergo legal action and will be taken into consideration by the Court. A caveat will be typically issued against the executor for the disclosing of copy.
When one of the family members has not been provided any kind of provision (funds and property) by the deceased, then a contest initiates between the family members. Such dispute for will where the members are contesting for the will is known as “Contesting a Will.” In such cases, individuals are left out or receive a small amount from the will.
Who Can Contest A Will?
Who can contest a Will? is the most frequently asked question. Here is the list of people who can contest a Will:
- Bloodline relatives-Family members
- A financially dependent person on the deceased
- Under an earlier will beneficiary
- Under final will beneficiary
- Debt claims
- Deceased has promised something to someone
· Bloodline relatives
Most of the time the family members contest a Will to upturn the will and hence the Intestacy Rule will put on. It is very important if the person is a bloodline family member. The family members particularly have the right and are allowed under the Act of Inheritance 1975, e.g., child or spouse of the deceased. As long as the Intestacy act is concerned, the adopted person takes after the bloodline of his adopted parents.
· A financially dependent person on the deceased
A Will under the act of Inheritance 1975 for a person who is reliant financially upon the deceased can still be contested. A claim under their estate can be made for someone who was maintained financially by the deceased under the Act, e.g., during the lifetime the deceased might have given some accommodation or financially have helped them.
· Under an earlier will beneficiary
You are allowed to make a statement if you are a beneficiary under a former will and have consequently been missed out from the concluding will.
· Under the final will beneficiary
A claim can be made against the estate on the basis that the Executor is behaving unreasonably and has failed to distribute the property.
· Debt Claims
Claims against the estate can be made if the deceased had to repay you money.
· Deceased has promised something to someone
Promissory estoppel cases are the cases where the deceased has promised something to someone and has been kept deprived of that specific possession.
What does Challenging a Will mean?
Opposite of contesting a will is challenging a will. It is the validation challenge for the Will. For a Grant Probate, the Will is not valid and should not be approved as well. A proof of the Will in which authorisation is given to the executor for the collection of estate property and funds hence can hand out among the named persons in the will. Such authorisation term is known as “Probate.”
When the validity of the Will is challenged, such term is called “challenging a will.” A previous Will is utilised when challenging a will becomes successful. According to the intestacy rules, the Estate of the deceased is distributed accordingly if that does not happen. Such disputes are named as “Challenges” by a few lawyers. As a demonstration of the deceased concluding demands, an individual considers there is a purpose that the will should be ignored.
Reasons for challenging a Will are the allegations given as follow
- Under Influence, Forgery, and Fraud
- Lack of Testamentary capacity
- Insufficient and inappropriate witnesses
- The absence of a Self-proving affidavit
· Under Influence, Forgery, and Fraud
When the person who is making the will is pressurized for the alteration of will, then such cases happen. On the other hand when the signatures are destroyed or changed on the wills then fraudulent will happen.
· Lack of Testamentary capacity
When an adult lacks a mental capacity for the formation of will or in other words is suffering from dementia, senility or some other serious disease, then litigation can occur that challenges the testamentary capacity of an adult.
· Insufficient and inappropriate witnesses
A witness of two non-beneficiary people in the making of a will is must under the Wills Act of 1873 during the signing, writing and witnessing of the will. The will is to be considered invalid if the rules are not fulfilled. Such wills that are handwritten and unwitnessed are known as “holographic wills.” Among the easiest wills to challenge are the holographic wills.
· An absence of a Self-proving affidavit
An absence to show the self-proving affidavit, where the witness signed a sworn statement of signing the will in public is not shown to the Court, and then such cases happen.
Mutual Grounds to Challenge a Will
With the number of will clashes now contested probate is in the upsurge, at record levels. In a multiplicity of contested probate circumstances, we frequently perform for Trustees, dissatisfied family affiliates, and Executors. It is a very intricate area, and the number of legal trials to wills can be inadequate. All the information you need to decide whether or not to pursue a claim, we have all that.
Contesting a Will vs. Challenging a Will scenarios
To explore the legal options for the validation of the wills that were created by your loved ones and courts will invalidate that, please hire some experience attorney to know the legal options. On the contrary, if you belong to the Executor side of the estate where someone has challenged the will, you can also contact the law firm for that. Because of mental incapacity, technical failure of undue influence or fraud the wills are challenged by the contestant.
A will can be challenged only on the first hand by the interested party to gain the will. In whole or part, a will can be invalidated. The circuit or probate judge has the options to invalidate the challenged will, distributing property or previous resonating version under intestacy laws. Anyone who alters or changes the wills is eventually disinherited from the property. The best option is always to consult an attorney in order to measure the options and an excellent assessment of their rights before contesting a will or challenging a will.
Contesting a Will happens when the offered will show the actual intention of the testator or the invalidation of the will. Specific procedures govern challenging of wills and if someone does not follow the rules should be prepared for the dismissal of the case. If you are planning to challenge a will, you should understand the grounds for contesting a will, and it should be your utmost priority to discuss it with your attorney. It will be very helpful to take some actions for the protection of the last wishes from challenges like these. All the help and suggestions in this regards can be taken from an excellent estate lawyer.
A very stressful and complicated experience is in challenging the validity of a will. To get in touch with a legal professional is of prime importance for the solution to your problem. A probate caveat is placed on the challenging will. After placing the caveat on the will, you can request the court and tell them the reasons why the will should not be considered valid. That will would be caught out, and you can inquire for previous will probate. The estate would be divided according to the law if there was no previous will present.
From the above discussion, we can conclude that Contesting a Will and Challenging a Will are extremely sensitive issues which must be handled by skilled lawyers. With the help of veteran attorney firm, it will be easier for you to win the case whether it is Contesting a Will or Challenging a Will.