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JAM | Feb 10, 2024

Contentious vs. non-contentious probate: How do they differ?

Shari-Lee Crooks

Shari-Lee Crooks / Our Today

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Reading Time: 3 minutes

The person named as the executor in a will is responsible for carrying out what is called a probate.

This is the process through which the deceased’s wishes are carried out after they have died. The executor will be responsible for making sure the will is followed to the extent that the law allows. For example, the deceased might have willed a property that they were a joint owner of, with the other joint owner still being alive. This would mean legally, they deceased cannot will it and therefore the executor cannot distribute it based on the instructions outlined in the will.

A non-contentious probate is as it suggests; there are no issues with the will’s validity and no beneficiary is challenging their gift in court. This allows for the executor to simply file the probate in court and start the distribution process.

The Civil Procedure Rules has a sample of the oath to be filled out by the executor, called P1. That form as well as the legal will of the deceased and proof of death should be submitted to the Supreme Court.

Supreme Court located in Downtown Kingston (Photo: EG Smith)

If there is more than one executor and there is no official renouncing of the duties made by the other, it should also be noted in the application that the other executor received notice that the probate is being pursued without them. In the case where the other executor has died or has renounced, the remaining executor must account for their absence by exhibiting the proof of death or deed of renunciation.

There is also such a thing called a chain of representation that may need to be considered as well. This occurs when the executor of a will dies before the estate is fully wrapped up and, therefore, leave some gifts unsettled. That dead executor’s executor now becomes responsible for the original estate as well the estate of the executor.

Once the relevant oaths are submitted with the supporting documents, then the court will grant the executor a ‘grant of probate’, which will gives the executor authority to dispense the gifts of the will.

In the case of a contentious probate, the process differs for obvious reasons. This process is necessary if there is an issue with the will itself, such as the extent of a gift, an exclusion from the will, or if there is doubt as to the will’s validity. This term also covers any issues with the manner in which the estate is being handled by the executor or administrator.

The applicant must file what is known as a fixed date claim form, in which the applicant must state the nature of their contention and who the defendant in the matter will be. The applicant must also give notice to every person affected by the will or administration.

The application must include the reason for the dispute of any gift in the will and in the case of validity, must set out evidence that points to invalidation of the will, such as a lack of proper execution or duress, or a lack of soundness of mind of the testator.

The matter of contention must be handled in order for the estate to be properly wrapped up and, therefore, there is usually a cessation of dealing with the estate until such time as the court can determine the matter. Once the issues are sorted in the court, then the estate can proceed with the administrator or executor, so the estate can be handled and wrapped up accordingly.

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