Probate Will Dispute
The matter involves a probate issue concerning a will signed with different pens, requiring affidavits from witnesses that have been challenging to obtain. A nearly identical previous will exists, signed 10 years earlier, for which witnesses can corroborate. The client is the sole beneficiary, with an additional bequest of a specified amount for the executor. The later will was submitted for probate in mid-2023. The client, aged 74, is additionally recovering from a serious health condition, adding urgency and complexity to the situation.
Questions about this case
These answers have been verified by a lawyer in the LEAP networkWhat can we do if we can't obtain affidavits from the witnesses to the will?
If affidavits from the witnesses to the will cannot be obtained, you may apply for a "proof of will" application in the relevant Supreme Court. This process involves providing evidence that the will reflects the true intentions of the deceased, even without the witness affidavits. It is advisable to gather any available supporting documents, such as the previous will and any statements from individuals familiar with the deceased’s intentions. Seeking legal advice can assist in preparing the evidence adequately and navigating the court proceedings.
Can the previous will be used instead if the later will cannot be validated for probate?
If the later will cannot be validated due to the issues with witness affidavits, the previous will may potentially be used as the operative testamentary document. If a later will is deemed invalid, the court can consider an earlier valid will to grant probate, provided it was executed properly and reflects the deceased's intentions. The existence of a nearly identical previous will, with available witness corroboration, would strengthen its acceptance as a valid alternative.
What are the potential challenges or delays in the probate process given the issues with the will?
The probate process might face challenges or delays due to discrepancies in the will's execution, such as the use of different pens. This can raise questions about the will’s validity, requiring affidavits from witnesses to confirm its legitimacy. Without these affidavits, the probate process may stall as the court needs assurance that the will reflects the deceased's genuine intentions. The existence of a previous will adds complexity, potentially requiring a comparison to determine the deceased's last valid testament.
Are there any time limits or deadlines we need to be aware of in the probate process?
In the relevant jurisdiction, there is no strict deadline to apply for probate, but it is advisable to do so promptly to avoid complications or delays in administering the estate. Generally, executors should apply for probate within a year of the deceased’s passing. If there's a delay, the court may require an explanation. If a will contest arises, claims against the estate typically need to be made within six months from the grant of probate.
How can my current health condition impact my involvement or responsibilities in the probate process?
Your current health condition might impact your ability to actively participate in the probate process. Given your recovery from a serious health condition, physical and mental stress could be burdensome. Consider appointing an agent or enduring power of attorney to assist in managing responsibilities. This can help alleviate personal involvement while ensuring the probate process continues efficiently.
