Early Advice on an Estate Dispute Before Grant of Probate

Not all estate disputes begin after probate has been granted. In some cases, the dispute arises before the grant of probate has even been issued. Understanding what steps can be taken at this early stage, and why acting promptly can make a significant difference, is important for anyone with concerns about a deceased person's estate.

What happens before probate is granted

When a person dies, their estate cannot generally be dealt with until a grant of probate or letters of administration has been issued by the Probate Registry. This document gives the personal representative, whether an executor named in a will or an administrator appointed in the absence of a valid will, the authority to deal with the estate.

In the period between the death and the grant of probate, there is an important opportunity for those with concerns about the estate to take protective steps. Acting before probate is granted can prevent the estate from being distributed in a way that is later impossible to reverse.

Entering a caveat

A caveat is a formal notice lodged at the Probate Registry that prevents a grant of probate or letters of administration from being issued without the caveator being notified. A caveat is appropriate where a person has a genuine reason to believe that the grant should not be issued, for example because the will is being challenged, because there is a question about whether the deceased had mental capacity, or because there are concerns about undue influence.

A caveat remains in place for six months initially, after which it can be renewed. The personal representative can apply to remove a caveat by issuing a warning, to which the caveator must respond. If the caveator cannot demonstrate a legitimate interest or reason for the caveat, the court may order it to be removed.

Our family law barristers can advise on whether a caveat is appropriate in your circumstances and how to proceed.

Challenging the validity of a will

Where a will is believed to be invalid, the grounds of challenge typically include a lack of testamentary capacity, undue influence, fraud or forgery, or a failure to comply with the formal requirements for execution of a will. A challenge to the validity of a will is made through a contentious probate claim in the courts.

Acting before probate is granted can prevent assets from being distributed under a will that may later be found to be invalid. Once the estate has been distributed, recovering assets from beneficiaries becomes considerably more complex.

Protecting assets before the grant of probate

Where there is a genuine concern that assets are being moved or misappropriated before probate is granted, it may be possible to obtain an injunction to prevent dealings with the estate assets. This is a step that the court will only take where there is clear evidence of a real risk, but where that evidence exists it can be a highly effective protective measure.

Concerns about the executor's conduct

Where the executor named in the will is not acting appropriately, whether by unreasonably delaying the administration, failing to account for estate assets, or acting in their own interest rather than for the benefit of the estate, there are legal steps available. In serious cases, the court can remove an executor and appoint a substitute.

Raising concerns about an executor's conduct early, before significant harm has been done to the estate, is always the right approach. Taking legal advice at this stage gives you the clearest picture of what can be done and how to do it most effectively.

If you are ready to take the next step and instruct a barrister, contact us today and we will be happy to discuss your options.