For most people over the age of 18, creating and maintaining a will during their lifetime is essential. Why? Having a will equates to less stress for the loved ones you leave behind and it means that after you die, your affairs can be more easily carried out according to your wishes.
If someone dies without a valid will – termed dying “intestate” – their assets will be divided according to the laws of the state they lived in which usually means their assets go to the next of kin, but if there is none, then they go to the state.
Sometimes people die, not with a formal will that ticks all the legislative requirements, but with some other document attesting to their wishes that perhaps falls short of legal requirements (such as the requirement relating to the presence and signature of witnesses). If the court believes that the deceased person intended it to be their will, then more often than not, the court may consider that document to be the will. The minimal requirement for an informal will is that it is in the form of a document as per s8, Succession Act 2006.
A grant of probate is essentially a declaration from the Supreme Court, sought by the executor, that the will is the last valid will of the deceased. Whether probate is needed or not depends on the type of assets that the deceased has left behind. Probate allows the executor to start their work – collecting and distributing the assets of the state according to the words of the will.
There are two types of probate:
· Common form – where the will is uncontested
· Solemn form – where the will is contested and all interested parties can partake in the court proceedings
If there is no executor or the executor renounces probate of the will, then an application must be made to the Supreme Court for a grant of administration with the will annexed. The court then appoints an administrator (usually the beneficiary with the largest portion of the estate) to, similarly to an executor’s role, distribute the estate according to the will.
Questioning a will – what the court looks at
There are broadly two ways to contest a will – making an application under the Family Provision chapter of the Succession Act 2006 or questioning the validity at the Supreme Court.
The Supreme Court considers the following:
· Whether the will was the last made by the person, or if it had been cancelled or revoked
· Whether the deceased had the mental capacity to create it
· Whether the document was altered after it was signed
· Whether the deceased was tricked or “unduly influenced”
The court also has power to interpret wills and rectify a will if it does not sufficiently express the intentions of the will-maker. Generally speaking, it is wise to seek legal advice if you are thinking about contesting a will.
It is important to keep in mind the legal costs associated with will processes. There are professional fees for the work up to the point of obtaining the grant of probate and the letters of administration. A successful application to contest a will is usually paid from the estate but the court may order costs as it sees fit. Further, there are post-probate fees associated with executing the will (i.e. collecting and dividing assets, paying debts etc) plus any third party costs such as court filing fees, and the costs incurred obtaining documents such as death certificates.
Before you consider contesting a will, speak to an estate lawyer at LHD Lawyers today.