Coming to terms with the death of a relative becomes more diffic
ult if you need to contest your loved one's will. Contested probate matters can be emotionally taxing and time consuming for families, so seek out legal advice regarding wills from an attorney.
A will may be contested for different reasons related to the will's contents or its creation. Some of the most common reasons for contesting a will include:
- The mental incapacity of the testator to make a will
- Improper signing (execution) of the will
- Improper drafting of the will
- Discovery of another will created after the one at issue
- Dependents' claims to property disposed of by the will
- Disputed ownership of property disposed of by the will
A lawsuit that challenges the contents of a will or its effect is called a “contentious probate action”. Like other civil lawsuits, the person mounting the will challenge is called a plaintiff and anyone opposing the contest is a defendant. Also like in a civil lawsuit, the plaintiff must serve a statement of claim on all defendants setting forth the grounds for the dispute. The plaintiff may identify multiple grounds for contesting the will, such as the examples above.
During contentious probate proceedings, the court tries to determine whether the plaintiff can prove the validity of the grounds for dispute listed in the statement of claim. The plaintiff will have the opportunity to present evidence that, for example, the will was not signed in the presence of two witnesses as required under the Wills Act.
If the court agrees that one or more grounds for dispute is valid and proven, it will make an order regarding disposition of the estate consistent with the plaintiff's claims. For example, if the will is not correctly executed because it was not signed in the presence of two witnesses, the court may find that the will is not valid. In that case, and barring the discovery of any other valid will, the deceased's property would pass to his or her heirs according to the rules of intestacy. If another valid will exists, the property may pass according to that will's terms. Much depends, however, on the circumstances of a particular will contest and the specific findings by the court.
Contentious probate actions take time, money, and energy that grieving relatives cannot spare, so anyone considering challenging a will should contact an attorney for advice.
To find out more about contesting a will in The Bahamas, visit Gonsalves-Sabola Chambers online or call the office at +1 242 326 6400.