Mcgregor

The questions surrounding wills have come in fast and furious. This tells us how important it is to make a proper will before it's too late. We here at Flair would like to know how many of you have made your will since the start of the series, or let us know why you are afraid to make one.

The articles published within the past two weeks highlighted points regarding the preparation of wills and applications for probate. All things being equal, an estate could be properly wound up within a reasonable period of time. However, it is not unusual for things to go awry and for tense legal battles to erupt.

Determining whether or not a will is valid

These are perhaps the commonest forms of probate actions. The usual allegations are that:

The will was not duly executed.

At the time the will was executed the testator did not know and approve of its contents or was not of sound mind, memory and understanding.

The execution of the will was obtained by undue influence or fraud.

These claims are usually brought by persons who tend to gain more if the will is determined to be invalid. In some cases, the executor might have made a regular application for probate, but is prevented from proceeding to wind up the estate because a potential beneficiary lodges a caveat.

A hearing will have to be held, and the witnesses to the signing of the will may have to be called to answer questions related to the manner in which the will was executed and whether the testator had testamentary capacity when he signed the will. These witnesses are likely to be cross-examined by the attorneys for the parties who claim that the will is invalid.

In these actions, the court may find that the will is invalid and that there is an intestacy. If there is a finding that the entire will or a part of it is valid, the entire will or the valid portion will be admitted to probate.

Application to admit a copy will or a reconstructed will to probate

If a will cannot be found after the testator/testatrix has died, the presumption is that the will was revoked by destruction. However, if there is proof to rebut that presumption or to show that the will existed after the date of the testator's death, a copy or a draft of the contents or the substance of the will may be admitted to probate until the original will or a more authentic copy can be found.

Important pieces of evidence may have to come from persons who witnessed the due execution of the will or can vouch for the accuracy of the copy or reconstruction.

Applications to revoke the grant of probate

An executor may apply for and obtain a grant of probate, before being confronted with an application to revoke it because the existence of a later will is discovered. An application of this nature is usually made by a beneficiary under the later will or an executor who is also a beneficiary.

Other forms of action may arise in probate proceedings, such as where beneficiaries apply to remove an executor who has failed to fulfil his obligations to wind up the estate he has already obtained the grant of probate. In such cases, the court may substitute a new person to complete the task.

The word of caution is to ensure, as beneficiaries, that you are vigilant so that the proper steps are taken in relation to the estate. However, frivolous actions should be avoided, because the costs of probate actions are usually deducted from the estate.