July 18, 2024

Challenging a will is alien territory for most people. It may also seem very daunting and emotionally difficult. Understanding what the process involves can help to demystify events and assist you in deciding whether or not to proceed with legal action.

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  • Seek legal advice from a specialist probate firm, such as Keoghs Nicholls Lindsell & Harris LLP. If you decide to bring a legal challenge, your legal representatives will manage the steps listed below on your behalf.

  • Take action quickly, ideally before probate is granted and certainly within six months of the grant of probate.

  • The first step is to lodge a “caveat” with the Probate Registry. This means that probate cannot be granted without giving notice to the individual who lodged the “caveat”.

  • The beneficiaries to the will may respond to the “caveat” by issuing a “warning”. This will set out the reasons why they object to any claim contesting the will.

  • If you decide to proceed further, you can lodge an “appearance”. This is where you (and anybody else formally challenging the will) state your interest in the deceased’s estate.

  • If the two sides do not reach agreement, you can proceed to taking formal legal action. However, your solicitor may suggest first trying alternative dispute resolution. This is where professional mediators attempt to help both sides reach an agreed compromise. It requires the cooperation of both parties but is considerably cheaper than taking action through the courts. However, if no compromise is reached, formal legal action remains an option.

  • Probate action in court begins. After discussions with you, your solicitors will have prepared the grounds on which your challenge is based.

  • If the court rules that the will is invalid, you should expect for any previous versions of the will to be submitted for probate. If there are no previous versions, the rules of intestacy will apply.

Remember: A legal challenge to a will almost always delays the settling of the estate. It can also be very expensive: the cost of a week’s hearing in the high court may run into six figures. Finally, there are no guarantees that you will achieve the result you are seeking. However, alternative dispute resolution methods are increasingly being used to achieve satisfactory results at considerably lower cost.

For a confidential discussion, please contact Keoghs Nicholls Lindsell & Harris LLP.