While the granting of probate is often seen as the final step in administering an estate, there are circumstances where it may be contested even after approval. Whether due to the discovery of a more recent will, evidence of fraud, or questions about the deceased’s mental capacity, contesting probate post-grant involves complex legal procedures and can significantly impact the distribution of the estate.
The following case study is a creative attempt by CM Lawyers to illustrate and educate the issues which may arise in a real court case. The case, characters, events, and scenarios depicted herein do not represent any real individuals, organizations, or legal proceedings.
Case: *Davis Estate v Davis* [2023] NSWSC 789
In 2022, the probate for the estate of Helen Davis, a retired teacher from Sydney, was granted, and her assets were distributed according to her will. However, several months later, her estranged son discovered new information that led him to believe the will was not valid. Despite the probate being finalized, he sought to contest the decision, raising the question: can probate be contested after it’s granted?
In New South Wales, it is possible to contest probate even after it has been granted, but there are strict conditions and a limited timeframe in which this can be done. Grounds for contesting probate post-grant include discovering a later valid will, evidence that the original will was forged or made under duress, or that the deceased lacked the mental capacity to create the will.
In Helen’s case, her son claimed to have found a later will that superseded the one presented during probate. He also alleged that his mother had been unduly influenced by another family member when drafting the previous will. These allegations formed the basis for his challenge to the probate.
To contest probate after it has been granted, the challenger must file a 're-seal' application or seek to revoke the grant with the Supreme Court of New South Wales. The court will require substantial evidence to reopen the case, and the process can be complex and contentious.
Helen’s son filed an application with the court, providing the newly discovered will and affidavits from witnesses who supported his claim of undue influence. The court then reviewed the application, which involved re-examining the original probate decision and the validity of the newly presented evidence.
Contesting probate after it has been granted can have significant financial and legal implications for the estate and the beneficiaries. Legal fees can be substantial, and the process can delay the final distribution of assets. Additionally, if the contest is successful, it may result in a redistribution of the estate according to the new findings.
In this case, the estate was valued at $3 million, and the potential redistribution of assets had major implications for the beneficiaries. The legal battle over the validity of the will and the challenge to the probate grant added months of uncertainty and additional costs to the estate.
In the case of *Davis Estate v Davis* [2023] NSWSC 789, the Supreme Court of New South Wales ultimately ruled in favor of reopening the probate case. The court found that the evidence presented was compelling enough to warrant a re-examination of the will’s validity. The original grant of probate was revoked, and the estate was redistributed according to the newly discovered will.
This decision highlighted the court’s willingness to address concerns of fairness and justice, even after probate has been granted, when substantial new evidence comes to light.
This case demonstrates that probate is not always the final word on an estate’s distribution. Under certain conditions, it is possible to contest probate even after it has been granted, but the process requires strong evidence and legal expertise. Beneficiaries and executors should be aware of the potential for post-grant challenges and be prepared to address them if necessary.
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