5 Tips To Navigating Estate LitigationOct 26 2017
The loss of a loved one causes grief, sadness and uncertainty. The months following a death are stressful and dealing with the loved one’s estate can further add to this. Depending on the circumstances, it’s something that almost every family must go through. What can make it more difficult are when unplanned or unexpected situations arise such as when a family member has been written out of a will, a beneficiary is not being treated fairly or there are irregularities involving the will. Estate litigation can involve all of these circumstances.
Defend The Will
If you believe the will is fair and valid, you may have to defend it. This can be both legally challenging and an emotional time. Estate litigation can take several months or longer, so it is best to retain a lawyer with extensive experience in this field and do as early in the process as possible. The Wills, Estates and Succession Act (WESA) sets out the requirements for a valid will, which includes:
- Being at least 19 years old;
- Being mentally capable of writing a will; and
- Ensuring the will is in writing and signed by the maker and two or more witnesses.
These criteria should be considered first for confirming the validity of a will, while it may be deemed invalid due to other circumstances. If a will does not follow the prescribed formalities or was made at a time the will-maker had lost capacity or was under undue influence, it could affect what you are entitled to.
Know Your Loved One’s Wishes
Have end-of-life discussions with your loved ones throughout their lives. Accidents and sudden illnesses could happen at any time. Know where your loved one’s will, trust and other estate documents are located. Make sure that he or she used an experienced estate lawyer to draft the estate plan and formally updates the plan after big events happen, such as the death of a spouse, sale of a business or birth of a child.
Be sure you have a copy of the most recent will, or know where it is located. If you have an outdated will and a newer version is found later, the version that you have is invalid. This could affect how the estate should be distributed and even who is named as an executor to give effect to your loved one’s wishes.
Know the Time Frames
There are different time limits for when you can file an action in court related to estate matters. Depending on your claim, it can be short as 180 days after probate is granted. If you are concerned that a will is invalid or you were disinherited, you should contact a lawyer right away as the courts rarely, if ever, grant allowances for actions filed outside of the required timeline. If you wait too long, you could lose your entitlement.
Signing As A Witness
If you or your spouse are being gifted something in a will, it is better that you not sign it as a witness. The best practice is for the will-maker to have independent witnesses there to confirm his or her signature. If you do witness a will that you are also inheriting through, your gift may be void.
If you need help drafting your estate plan or you have questions about contesting or defending the validity of a will, contact RDM Lawyers LLP for a consultation.