Will Disputes

What is the Process of Contesting a Will?

Saying goodbye to a loved one is a difficult process. The situation can be further exacerbated by an unfair Will outcome. If you are dissatisfied with or have been unfairly excluded from a Will, there are steps you can take to contest an unfair Will.

Contact a specialist lawyer who can confirm that you have a legitimate Will dispute claims. Read on to learn about the process of contesting a Will.

Probate

Understanding probate is your first step in the process of contesting a Will. Probate is a legal binding order regarding the validity of a Will. If you would like to contest a Will, you have two decisions:

  • Wait until probate is granted, if you believe you have been treated unfairly in a Will and not adequately provided for.
  • Challenge the Will before probate is granted, if you believe the Will itself is invalid (e.g. the executor did not understand what they were doing or did not properly execute the demands of the deceased). In this case, you will have to act quickly because once probate is granted, the Will is considered valid under the law.

Collect Evidence

Consult with your compensation lawyer to decide on the best evidence you can provide to successfully contest a Will. You will need to obtain a copy of the Will, details of the deceased assets and their worth, and information as to whether probate has been granted or not.

The court will examine the following facts:

  • Details of the Will and why it was executed as it was  
  • Evidence there was tampering of the Will
  • Whether the deceased person had a ‘moral duty’ to care for the claimant
  • Whether the claimant was partially or completely dependent on the deceased person
  • Whether the claimant was adequately treated in the Will, if not, what changes should be made
  • The relationship between the claimant and the deceased
  • How other beneficiaries of the Will may be affected by the changes

Evidence that can address any of the above points will strengthen a Will dispute claims. Make sure you provide relevant and accurate information with your claim so that you have the best chance of success.

written-will-and-testament

Negotiation

A Will dispute claims can often be settled before court proceedings commence. Settlement negotiations outside of the courtroom come with a number of pros and cons. One of the key positives will be that you can save a substantial amount of money. Court fees are expensive and can reduce the value of the estate and the amount you could receive. Negotiation also allows each party to state their thoughts and opinions in a less formal setting which can be easier on families.

One of the main downfalls of negotiating in the process of contesting a Will is that you are not aware of the other party’s evidence and therefore may find yourself negotiating in the dark. You may not receive accurate information in regards to the full value of the estate which can lead to an unfair settlement.

Mediation

If an amicable settlement between parties cannot be reached through negotiation, you may be referred to mediation. Mediation can be a final chance to reach a settlement without beginning court proceedings to contest a Will.

Mediation can be a better process of reaching an out-of-court settlement because the executor is required to reveal a list of the estate’s assets and their value. It is easier to attend an informed and fair settlement than negotiation where you may be misled by the other parties.

Court Proceedings

You may find you are unable to come to a fair settlement outside of court. In this case, the court will make a final decision regarding your case. It is recommended that you make sure you have gathered the required evidence and have an experienced compensation lawyer to ensure a successful outcome of your Will dispute.

Costs regarding legal proceedings are usually paid out by the estate, so you won’t have to worry about paying these outright. The duration of a Will dispute claims can vary based on how quickly parties can reach an agreement and if the claim goes to court. It is best to anticipate the process to take 6-12 months, including mediation in between.

Any person who believes they have the right to contest a Will should seek legal advice immediately. It is important to speak with an experienced compensation lawyer who can give you the right information about the process of contesting a Will.

 

If you are involved in a Will dispute claims or need information about where you stand in regards to contesting a Will, contact Schreuders today.

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