For the court to grant probate, it was declare that the will is a valid will.
To make a will, the will maker must be:
- at least 18 years old
- of sound mind, memory and understanding
To be a valid will, a will must be:
- in writing
- signed by the will maker
- witnessed by two people
This is a basic summary of how to make a valid will, but it is a complex area of the law. Will disputes can arise when a will is not valid and the court must decide how to administer the estate. A will may be deemed invalid if:
- it was not the last will made by the deceased
- the deceased lacked the mental capacity to make a will
- the deceased did not understand the will (for example, the will maker did not understand English and was asked to sign it)
- someone else used undue influence or pressure to force the will maker to make the will
- the signature on the will has been forged or there has been some other fraud
- the will presented to the court had been revoked.
It is the role of an executor to seek probate of a valid will. Executors have certain responsibilities and obligations to administer the estate faithfully. Sometimes the reality is that the executor is not administering the estate in the way the executor ought, either willfully or because they don’t understand the role fully.
We are able to advise executors on their legal obligations in administering estates, so that they do not have to be concerned about a court application for their removal and to prevent them being personally liable for a large legal bill.
For the beneficiaries under a will who are concerned about the actions of an executor, we can assist to protect and preserve the estate and ensure that the executor administers the estate faithfully or to ultimately remove the executor if necessary.