These applications usually proceed without objections, but there are recourses available if you have concerns about the executor
One of the first steps that has to be taken after a person passes away leaving a Will and assets to distribute to beneficiaries, is an Application for a Grant of Probate or Administration. These applications usually proceed without objections, but there are recourses available if you have concerns about the executor and his/her ability to wind up the estate fairly.
Under WESA, an interested party can dispute the issuance of an estate grant by filing a Notice of Dispute with the Court. This notice prevents the Court from issuing a grant until the Notice of Dispute is withdrawn, cancelled, or is superseded by a Court Order. The Notice of Dispute expires after 12 months if no action is taken.
A Notice of Dispute can be filed by any person who is entitled to receive a copy of the Application for a Grant of Probate/ Administration. This includes:
- Any executors under the Will;
- Any beneficiaries named in the Will; and
- Anyone who is entitled to share the estate if there was no Will (usually this includes spouses, children, and in some circumstances grandchildren and other relatives).
In order to file a Notice of Dispute, there must be a valid reason. On example is that the person filing the Notice of Dispute has reason to believe the Will is invalid and plans to pursue proof of the “Will in solemn form” (i.e. force a hearing on the validity of the Will). Another reason is allegations of conflict of interest on the part of the executor for all sorts of reasons.
If you are uncertain whether or not there are valid grounds to file a Notice of Dispute, you should seek legal advice to canvas your options. It is important to only file a Notice of Dispute if you have significant reasons why the executor should not be appointed. Otherwise, when the executor goes to remove the Notice of Dispute by Court Order you will have to pay legal costs of the executor. Also, the Notice of Dispute will invariably delay the wind-up of the estate.
A Notice of Dispute must be filed before the earlier of the issuance of an estate grant or an authorization to obtain estate information. An authorization to obtain estate information is usually sought when the person applying for a grant does not have the required information concerning the deceased’s assets and liabilities.
In sum, Notices of Dispute were introduced to reduce delays in estate matters. They encourage interested parties to settle disputes within the year that the notice is in effect, or to file a court action relating to the estate within that year.
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