The death of a loved one is always a difficult time for everyone involved who was close to that person. Death is a very sensitive subject for many people, and there Will be an extensive period of uncertainty, mourning and a sense of loss.
However, as difficult as this period is for everyone involved. It is critical that the assets of the deceased are liquidated and that the proceedings of the deceased’s Last Will & Testament be enacted as soon as possible. The first step of enacting any Will is to ensure its validity. There are specific criteria that a Will must meet in order to be valid, they are as follows:
● It must be in writing.
● It must be signed by the testator – the person who has created the Will.
● The testator must be of sound mind, memory and understanding.
● The signature of the testator must be witnessed by two people – these two people cannot be beneficiaries of the Will.
● Both witnesses must sign the Will in the presence of each other and the testator.
Once the deceased’s Will has been judged to be authentic and valid, the next step usually is to move to execute that Will. The executor is usually a professional in a team of Will and real estate lawyers and is charged with collecting the necessary parts of the Will and distributing the assets of the deceased to all of the beneficiaries of the Will, as indicated within the document.
It is during the execution a person’s Will that issues can arise. Challenging a Will is no small matter and one should think carefully before taking the step of hiring estate litigation lawyers, also known as deceased estate lawyers. However, if you think you may have grounds to conduct a Will dispute, here are three reasons you need the help of a lawyer, and what you need to know to get the ball rolling.
1. Contesting a Will
Contesting a Will is the act of disputing a Will, formally and legally. If you wish to contest a Will, you must demonstrate that you are a valued member of the deceased’s family and that you were unfairly left out of the Will, or that you were not adequately provided for. You can contest a Will with one of our lawyers who specialises in Will estate disputes.
Further to being unfairly left out of the Will, you could make the argument that the deceased was not of sound body or mind when they made the Will, without providing for you in the Will. Or, that the Executor made an error in the execution of the Will, or that the deceased made a clear error in drafting and signing the Will – such as not having the requisite number of witnesses and their signatures.
In order to contest, you must be an ‘eligible person’ of the deceased’s family. These people are either: siblings of the deceased, dependents of the deceased, grandchildren of the deceased or a member of the deceased’s household, children or step-children of the deceased, or the spouse or former partner of the deceased.
That all seems fairly straightforward, however, what happens in the instance where there is no written Will to contest? Perhaps the deceased did not write a Will, but simply offered verbal promises to the ‘beneficiaries’ of what they were to receive in the event of the deceased’s death?
One of AJB Stevens’ specialties is helping out with contested Wills. If you wish to contest a Will, you’ll need to come to see us and tell us why the Will needs to be contested. Are you not being represented fairly, despite an obvious familial connection to the deceased? This is our bread and butter when it comes to Will disputes. We offer counsel and litigation on your behalf in these matters, treating everyone in the equation with fairness and respect, especially the testator of the Will.
2. Contesting Without a Will
Without a written Will, contesting is more difficult. However, if you want to contest without the presence of a Will, you’ll need to bring a ‘family provision’ document to court. This is an application to the Court that demonstrates that you are sufficiently entitled to a portion of the deceased’s Will. If your loved one has died, but did not make a Will, you might still be entitled to something from the assets of your loved one – you just need to make an application to the Court that will be adjudicated based on legislation.
Our goal at AJB Stevens is to help you through this process and ensure that, if eligible, you get what you are entitled to. Contesting without a Will is a tricky process that we’re happy to help with. In this case, we would work with you to prove with evidence that you were close enough to the deceased, as a member of the family, that you should be considered as part of the family unit, when the estate is divided up. We will assist you in figuring out which documents you’ll need to prove familial ties, and then process those documents and submit them to the court as part of your application.
3. Challenging a Will
Challenging a Will is a dispute involving the improper creation of the Will. If you believe that your loved one’s Will has been improperly created, our goal is to help you prove it. Dotting the i’s and crossing the T’s is one of the most important parts of the creation of any legal document, but particularly in the case of Wills – as these are often involving large sums of money.
If you wish to challenge the veracity of a Will, you’ll need to let us delve into your loved ones’ life a bit. Were they under any sort of mental stress at the time of the creation of the Will? Could they have been coerced by others into allocating money to them and not you? Is there anything that is missing from the legal necessities of the documents? We will go over the Will documentation with a fine-tooth comb, looking for anything that might highlight inconsistency, or cause for concern regarding the veracity of the Will. Our goal in this instance is to prove that the Will was improperly created or improperly executed.
How Can AJB Stevens Help?
For those wishing to contest or challenge a Will, there is a time limit of six months from the date of probate – that is, when a Will is certified as authentic by a court.
At AJB Stevens, our team of specialist Will and Estate Lawyers are experts in making sure that your deceased loved one’s Will is respected, while at the same time making sure you get what you’re entitled to. Get in touch with us today if you wish to make a dispute and one of our team will be happy to get the process started.
