How does a grant of probate change contesting a will?

Published 27 Jan 2016

Author: David Cossalter

A number of people need to perform a range of roles to ensure a deceased's will is distributed according to their dying wishes. However, if someone makes an error or intentionally neglects their responsibility, it can lead to a contesting wills claim to ensure all beneficiaries receive their share of an estate.

If this is the case, it's important for people to be sure they are able to contest a will, as this document can only be objected to in certain situations. People who don't respond to any concerns promptly, or do so incorrectly, risk jeopardising their claim.

A grant of probate is an important part of the estate distribution process that can have a significant impact on the contesting wills process. What will this mean for your case?

What does a grant of probate mean?

In NSW, an executor of a will must apply for probate in the wake of a testator's passing. Probate is confirmation that a person's last will and testament is legally recognised and means the executor can begin distributing an estate as required.

An estate cannot be distributed if this stage of the process has been completed, as a grant of probate for an executor ensures they are able to release the deceased's assets from organisations such as banks and insurance providers. Without this grant, assets cannot be passed to beneficiaries.

Can a will be challenged after probate was granted?

In short, yes, it is possible to challenge a will after an executor has been granted probate. However, people need to meet a range of conditions before they are able to contest a will.

In cases where a will is being challenged following a grant of probate, it falls on the beneficiary to prove the will is invalid, based on information that wasn't available earlier. By this stage, the court has already determined that the will in question is valid and legally verified, as signified by the grant of probate.

One of the main situations that would require people to contest a will in these instances is if an executor is not performing their duties correctly. Situations such as this can lead to beneficiaries missing out on valuable assets, so it's important that people challenge any activity outside the norm.

On top of this, if beneficiaries find an older will that conflicts with the will that  received a grant of probate, it may lead to a contesting wills claim.

Contact the lawyers at Gerard Malouf and Partners if you have more questions about this process.

Extract: One of an executor’s most important responsibilities involves applying for a grant of probate. How does this change the contesting wills process?

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