Family members who were left out of a deceased individual's will or who were apportioned a smaller share than they believe they are entitled to may consider contesting a will.
Grounds For Challenging A Will
A will may be challenged under the following grounds:
- Undue influence
- Lack of mental capacity
- Noncompliance with formal requirements
- Lack of provision for spouse or dependants
- Unclear testator intentions
Procedures In Challenging A Will
If an individual decides to challenge a family member's will, court procedures must be initiated. To do so, the individual must file a notice of objection, bring a motion for the return of the certificate appointment, or a motion for direction of the court.
Following that, the parties to the dispute must fulfil a series of formal requirements. This eventually leads to the parties seeking court direction on how the case will proceed.
Going to court to contest a will is often a complex endeavour. It requires knowledge of court processes, the proper applications to be filed and the motions to be brought.
For instance, in some cases, one may or may not be required to file a notice of objection or a motion for the return of the certificate appointment. This is determined by whether the will has been, or is required to be, probated.
Courts also examine the true intentions of the testator. Yet, it can be difficult if not impossible to clearly ascertain the intentions of the deceased at the time that he or she was writing the will.
Individuals who wish to challenge a will are wise to seek the advice of an experience estate litigation lawyer.