Probate
Author:
Andersons Solicitors
Publish Date: December 21, 2008
Before a deceased person's property can usually be distributed in accordance with the provisions of a Will, the executor of the Will must apply for and obtain a grant of probate from the Supreme Court of South Australia.
One reason for the probate process is to enable that court to examine the Will to determine if it is formally valid.
At best, an invalid or informal Will can give rise to additional expense whilst the court determines the intended meaning of the Will. At worst, the Will may be set aside, leaving the deceased person "intestate", meaning without a Will. If that occurs, a distribution of the deceased's property will be governed by the laws relating to intestate estates.
A Will can be invalid in many ways. Invalid wills often result from a person attempting to draft their own Will and making a fundamental error in doing so. It is a good idea to get your Will drafted by a lawyer to ensure such problems do not arise. Andersons Solicitors can draft a simple Will for around $300.
The other reason for the probate process is to give interested parties a chance to question whether the Will is in fact the last Will of the deceased and whether the Will was made at a time that the now deceased author of it had the mental capacity to understand the purpose and effect of the Will. If the answer to either question is no, the Will may be set aside and an earlier Will may constitute the testator's last Will instead.
There are other grounds for challenging a Will. For instance, the person making the Will may have been under undue influence or duress at the time of making the Will. If the court is satisfied that was the case, the Will may again be set aside.
If a person thinks that they have grounds to challenge the validity of a Will, the usual procedure is for the person to lodge a "caveat" on the Will. The person who lodges a caveat must then be notified before probate is granted, giving them the chance to make an application to the court to have their grounds of complaint considered before the court authorises the executor to start distributing the estate's property.
If you wish to challenge a Will, it is important to challenge the Will before probate is granted. Once a grant of probate is made, it can only be revoked on limited grounds. It can be difficult to recover the property of an estate after it has been distributed.
Many successful Will challenges start off with the suspicion that "something is not right" with a Will. We can help you determine whether you have an arguable case by gathering evidence from third parties, such as the deceased's doctors, who may testify before the Court that the deceased could not have understood the effect of the Will at the time of signing it.
We regularly advise executors in relation to obtaining probate. We also advise clients who wish to challenge the grant of probate.
Anderson's origins go back over 100 years: one hundred year's of history in dealing with deceased estates. Our Wills and estates team upholds the firm's tradition of providing sensitive, practical advice to South Australian families as they negotiate the sometimes emotional issues surrounding the death of a loved one. We are proud to say that our firm has provided advice to generations of the same family on their Wills and estates.
