Wednesday, January 9, 2013
How do I know if someone is contesting the will?
Posted by Lynne Butler
"I have applied for probate and now I'm waiting the 6 months to see if anyone is going to contest the will. If they do contest it, how will I know?"
This is an excellent question, particularly if there is someone in the family who has been making noises about contesting the will. Usually the six months that you refer to is in place to allow a dependent of the deceased to apply for a greater share of the estate. Strictly speaking, this isn't contesting the will, but is only asking the court to change the distribution to give more of the estate to a person who was not sufficiently supported. In most places, a dependent (a spouse, minor child or handicapped adult child) has six months from the day the probate is issued by the court, NOT six months from the date of death.
If someone is going to make this kind of claim, they have to follow the court procedure set out in the law of the province or territory. Every province has its own laws and forms. The person who is making the claim would have to file certain documentation with the court and then serve the documents on you. They don't start a new lawsuit; they file all the documents in the probate court using the case number assigned to your probate application.
Serving the documents - or giving you a copy of them - is usually done by registered mail or in person. When you filed your probate documents, you would have been asked to give an address for service. If you applied without a lawyer, the address for service would be your home address. If you used a lawyer, the address might be the lawyer's office. And by the way, refusing to pick up your registered mail doesn't mean they haven't served you. They have.
If someone tells you on the phone or writes you a letter saying they are making a claim against the estate, that is not sufficient. They have to go through the proper court process just like you did when you applied for the probate. Just talking about it does nothing. If someone does tell you they want to make a claim against the estate, tell them to see a lawyer.