Challenging an Executor of a Will

If you have been appointed as an Executor of a Last Will or would be an heir on intestacy, you can challenge the appointment of another person as Executor where you have sufficient legal grounds to do so. These grounds arise where, for example, you have a stronger right under law to be appointed as an Executor or where you believe the Will was fraudulently amended. However, the best way to challenge the appointment of an Executor’s is to challenge the legality of the Will itself. To challenge the Will, you will need to take the following steps:-

Step 1          
Get a copy of the Last Will and check that it has been properly executed. If it has been filed in the probate office, you should be able to get a copy there. Alternatively, the existing Executor or lawyer advising the Executor may give you a copy. If it has not been executed, intestacy laws will apply to determine who should be appointed executor.


Step 2          
Speak to the people who witnessed the testator execute the Will and see if they can confirm that the testator was aware of what he was signing. If the testator was unaware of what he was signing, you may have a right to have it nullified. Again, intestacy laws will then apply.


Step 3          
Enquire as to whether the testator was mentally competent when he signed the Will. If he was not, you can challenge the Will.


Step 4          
Check that both of the witnesses were present when the testator signed the Will and again when each beneficiary signed the Will. State laws typically require that all parties are present at the same time when the testator and witnesses execute the Will. Again, a failure to comply with the state laws on execution could give rise to a cause of action to seek to have the Will invalidated.


Step 5          
Ask the witnesses whether there was any possibility that the testator was pressurized into signing the Will or if there was an undue influence. Again, if there was you could challenge the Will.


Step 6
If you can establish a case to challenge the Will, ask your lawyers to file the appropriate papers in the probate


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Executors Guide to Probate

How To Probate An Estate - A Step-By-Step Guide for Executors


This book is essential reading for anyone contemplating acting as an executor of someone’s estate! Learn about the various stages of probate and what an executor needs to do at each stage to successfully navigate his way through to closing the estate and distributing the deceased’s assets.

Published December 2010

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