Losing a loved one is always a difficult and emotional time. However, it can be even more distressing when a family member disputes the contents of the deceased’s will. Disputing a will is not an easy process, and involves various legal complexities. In this article, we will break down the steps involved when disputing a will, and provide clarity on how you can navigate your way through the legal process.
STEP 1: Understanding Grounds for Dispute
Before disputing a will, it’s important to have a clear understanding of the grounds for dispute. These grounds include lack of testamentary capacity, undue influence, fraudulent activity, or improper execution. Testamentary capacity refers to the person being of ‘sound mind, memory, and understanding’, and that they fully understood the contents of their will. Undue influence relates to the person being in a position of power or influence over the deceased, and using this to manipulate them into drafting a particular will. Fraudulent activity can either be in the form of forged signatures, or fraudulent amendments made to the will. Lastly, improper execution refers to the will not being executed in accordance with legal formalities.
STEP 2: Gather Evidence and Consult Legal Expertise
After identifying grounds for dispute, it is essential to gather the necessary evidence, and consult legal expertise. To gather evidence, it’s important to obtain a copy of the will, and any previous drafts. This helps to identify any inconsistencies, and assess whether or not the will has been executed correctly. Gathering evidence also involves speaking to key individuals, such as witnesses to the signing of the will, and beneficiaries named in previous wills. Legal expertise is required to determine the strength of your case, and advise you on the legal process involved in disputing a will.
STEP 3: Pre-Litigation Process
The pre-litigation process involves attempting to resolve the dispute out of court. This can be done by sending a letter of complaint to the executor of the will. The letter should outline the grounds for dispute, and provide evidence to support your case. The executor has a duty to investigate the complaint, and respond within a reasonable timeframe. If the dispute cannot be resolved at this stage, then legal proceedings may be necessary.
STEP 4: Commencing Legal Proceedings
If the pre-litigation process is unsuccessful, then it may be necessary to commence legal proceedings. This involves filing an application in the Supreme Court or County Court, depending on the complexity of the dispute. Legal representation is essential at this stage, as the legal process is formal, and requires adherence to strict legal protocols. The process involves filing and serving court documents, drafting affidavits, and attending court hearings.
STEP 5: Reaching an Outcome
The legal process involved in disputing a will can be long and stressful. However, it’s essential to remain focused on the desired outcome. The outcome may involve altering the contents of the will, or receiving adequate provision from the estate. Whatever the case may be, it’s important to appreciate that an outcome may not always be achievable. Therefore, it’s essential to take all necessary steps, gather necessary evidence, and seek legal expertise to ensure you have done everything in your power to achieve success.
Disputing a will is a complex and legal process that requires patience, diligence, and legal expertise. The steps involved in disputing a will include understanding grounds for dispute, gathering evidence, pre-litigation process, commencing legal proceedings, and reaching an outcome. Disputing a will can cause additional stress and emotional pain, which is why it’s essential to seek legal representation and support throughout the process.