At times, a testator appoints an individual or individuals to administer their estate after their death. These appointed persons are known as executors of the will and have the legal mandate to manage or distribute the estate left behind by a will maker.
Upon the death of a testator, a person nominated to be an executor has to file in a court to be granted probate. Probate is an order confirming that an executor of a will has been legitimized through a valid will made by a testator. A grant of probate, therefore, gives the executor legal authority to manage an estate as was the wish of a testator. If a grant of probate has not been given, property owned by the testator cannot be distributed. In case the executors nominated by the testator are not available, a probate judge has the power to appoint an intestate administrator. This kind of an administrator will assume all the powers that had been granted to the nominated executor. Also if a person died but did not have a will, probate cannot be applied for. In such a case, one can only apply for letters of administration.
Application for probate has to be applied within 6 months after the death of a will maker. Late applications can only be allowed if there is a reasonable explanation that occasioned the delay.
Contesting a Will after Probate
After probate has been granted, a will can still be challenged. Grounds for such a contest are almost similar to those of contesting a will under ordinary circumstances.
Reasons for contesting a will after probate
There exist many reasons as to why one can contest a will after probate. For one to be successful in doing so, they have to prove that the will lacks in one or more of its requirements by law. These reasons are:
Testator lacked testamentary capacity.
This is where somebody claims that a will maker was not in their right mind and therefore was not able to make informed decisions. It could be the testator was suffering from a mental disorder or could have been under the influence of certain drugs that could impair their judgment.
Being a close relative or dependent who doesn’t receive an entitlement
Only close relatives or testator’s dependents that are either entitled to or require financial provision from the estate left by a will maker can present this claim. One has to contest a will, based on this claim, within 6 months after probate has been granted by a court.
Coerced or under duress
This is where a testator could have been forced or influenced against his or her wish to will in a certain manner.
Someone may contest a will if it was not executed as it should. For example if, at the time of writing, the will maker did not sign the will in the presence of two witnesses who then signed the will individually in the presence of the testator.
Improper administration or distribution of the estate by an executor
This is the primary reason why people dispute wills after a grant of probate has been issued. The nature of the allegations varies but tends to demonstrate incompetence or bad faith by the executor. These include:
- An executor keeping the money to himself without distributing it to beneficiaries
- Failing to pay money as per the conditions set out by a will. For example, not releasing money to a beneficiary after he or she has reached the stipulated age, usually above 18 years
- The executor may have distributed the estate wrongly like allocating the estate to people who were not the beneficiaries
- The executor fails to account properly for the estate they are managing
Under improper administration, one has to make a claim within 6 months after there has been a breach in Grant of Probate. An executor is supposed to provide beneficiaries with accounts when needed. He or she has to act in good faith at all times and risks incurring personal liability if they fail in this expectation. When acting in their professional capacity, executors or administrators can charge fees for it. However, their ability to charge is much more restricted if they are not acting in such a capacity.
It is highly recommended that one disputes a will even before a court has granted probate. This is because, after a Grant of Probate, the estate can be dissipated. Whereas one can obtain a caveat to stop a Grant of Probate, you risk a court issuing proceedings against you. However, court proceedings cannot be issued against you if you contest a will after probate has been granted. So it would be up to you to decide when you want to present your claim. You can always seek legal advice when faced with such a dilemma.