Probate Dispute
The matter involves contesting a probate application related to a deceased relative, whose estate is claimed by a neighbour. The probate application was filed for a will dated a few years prior, with the neighbour named as the executor. The date of death was noted several months ago, and the application has been publicly advertised. The client claims to be the last remaining relative and seeks to challenge the neighbour's claim on the estate. The case remains active in the court system.
Questions about this case
These answers have been verified by a lawyer in the LEAP networkWhat are the steps I need to take to contest the probate application filed by the neighbour?
To contest the probate application, you must file a caveat with the Supreme Court in your jurisdiction. This prevents probate from being granted until your claim is resolved. Prepare an affidavit stating your reasons for the contest and any supporting evidence. Notify the executor and other parties of your intent to contest. Engaging a solicitor with expertise in probate matters is advisable for assistance with document preparation and navigating the process. Consider mediation as an option to resolve the dispute without court intervention.
Is there a deadline for contesting the will, and how can I ensure I don't miss it?
In Victoria, you must contest a will within six months of the grant of probate. If the application for probate was publicly advertised recently, prompt action is required to ensure you meet this deadline. Filing a caveat with the court halts the probate process temporarily, allowing you time to prepare your case. Legal advice is essential to complete the necessary forms accurately and understand the process.
What evidence will I need to gather to support my claim as the rightful beneficiary of the estate?
To support your claim, gather the following evidence:
- Family Tree: Demonstrate your relationship to the deceased and how you fit into the family structure.
- Will Validity: Assess grounds to challenge the will's validity, such as undue influence or lack of capacity.
- Previous Wills: Locate prior wills naming you as a beneficiary or executor.
- Communication Records: Collect correspondence indicating the deceased’s intentions regarding their estate.
- Financial Records: Compile evidence of the deceased's assets that support your claim over the estate.
- Witness Statements: Obtain statements from those familiar with the deceased’s intentions.
How does the court decide in cases where the will is contested and what factors are considered?
When a will is contested, the court evaluates the testator's mental capacity, any signs of undue influence, fraud, and adherence to proper will execution formalities. Presence of more recent wills may also impact the decision. Evidence from both sides will be assessed to establish the rightful executor and beneficiaries.
Are there any potential costs or risks involved in contesting the probate and how can they impact my case?
Contesting a probate may involve significant legal fees, especially if the case is prolonged. If the contest is unsuccessful, you may be liable for the other party’s costs. Delays in estate distribution could also affect your financial situation. Additionally, the process could strain relationships. It's important to evaluate the financial implications and the strength of your case before proceeding.
