FAQs: Wills & Estates Disputes

  • Why is the terminology so confusing?

    To put it simply, this is because inheritance law has been around for a long time. Therefore, some of the terminology can seem archaic and even a bit scary. We explain some of the relevant terms below, but to start with:

    1. ‘Probate’ is a generic term for the legal process involved in the settling of the estate of a deceased person.
    2. ‘Grant of Representation’ is a term used to describe the legal document that Executors or Administrators sometimes need to obtain to deal with a deceased person’s property and affairs. If the Deceased left a Will, the relevant documentation is called a Grant of Probate.  If they did not leave a Will, the documentation is described as the Letters of Administration.

    At SAS Daniels, we will help you to get your head around what each of the relevant terms mean, in plain English, so that you can make fully informed decisions.

  • What are ‘Personal Representatives’, ‘Executors’ and ‘Administrators’?

    These are all terms for the persons who are appointed to administer the estate of the Deceased, i.e. their role is to distribute the property/assets of the Deceased.

    1. ‘Executors’ are appointed under a Will.  The written Will should identify these individuals as those who will be responsible for administering the estate in the event of the Deceased’s passing.
    2. ‘Administrators’ are similar to Executors as they are responsible for administering the estate. An administrator will act where there is no Will or the Executors named in the Will have died before the Deceased.

    The phrase ‘Personal Representatives’ is just a collective term for Executors and Administrators.

  • On what grounds can I challenge a Will?

     You cannot validly challenge a Will because it seems unfair, or because you disagree with its contents.  You can challenge it on the following grounds:

    Lack of proper execution:

    • In order to be valid, a Will must be in writing; and
    • signed in the presence of two witnesses who also sign it there and then in the presence of the person making the Will (a witness or their husband or wife cannot be named as a beneficiary unless there are at least three witnesses).

    Lack of testamentary capacity:

    • If the deceased did not have the mental capacity to make the Will at the time it was made.   This issue is not always straightforward, it depends upon the specific facts of each case and the evidence available.

    Revocation:

    • This occurs when the contents of a Will have effectively been ‘cancelled’ and no longer apply, e.g. when a will is voluntarily destroyed or when a new Will is made.

    Lack of knowledge and approval:

    • This arises where the Deceased did not properly approve the Will;

    Forgery and/or Fraud:

    • Includes the false creation of a document.  Fraud can also arise where the Deceased has been lied to about another person (e.g. where a person misled the Deceased about what a potential beneficiary did or did not do, in order to influence the Deceased’s decision-making regarding who should benefit under the Will);

    Undue Influence:

    • This arises where the Deceased did not act of their own free will, and was improperly coerced, when making the Will, often by a potential beneficiary.
  • Who can challenge a Will?

    Any person with a sufficient interest can challenge a Will.  For this purpose, the word “interest” should be construed broadly, but it includes the following:

    • People who are entitled to receive property under the Will (‘Beneficiaries’);
    • People who are not named in the Will but who were otherwise promised an inheritance; and
    • People who were related to and/or dependent upon the Deceased.

Contact SAS Daniels

For more information or advice regarding Wills & Estate disputes, please contact a member of the team using the contacts listed below.