Last Will vs old Wills to get probate problems

Discussion in 'Wills & Estate Planning' started by Happykid, 21st Nov, 2019.

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  1. Happykid

    Happykid Member

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    Dear all, my mum passed away recently. She has done a will with a lawyer about a month ago before she died. But few days ago before she died, she did another will using will kit and got it property signed and witnessed while she was in hospital and this will is her last will. I went see the lawyer to help with getting probate using her last will. The lawyer said she will try apply for probate using her last will, but there could be problem and may need to use her old will instead. Why? She did ask me questions like was she mentally capable which I believe she was. She also mentioned the possibility of my sister challenge the will. I'm not concern either as she is well off and I've spoken to my sister already and she won't challenge the will. My father said the same thing. Why would the lawyer care?

    My questions are: How will probate court probate the last will? Why would they use the old will instead of the last will? Isn't the last will her final wishes and revoke all previous wills? What questions will probate court ask me when they are trying to probate the last will? Will they not probate the last will if they think my sister or my Dad will challenge the will? Will there be any problem getting last will probated?
    Thank you.

    The general details of the wills are follow:
    Old will(done with a lawyer) -
    joint executor: myself and her best friend
    some gifts to her friends, some money to her friends.
    The remaining assets including her house goes to me
    Nothing to her daughter as they never contacted each other for many years.
    Nothing goes to husband as they separated many years ago

    Last will(will kit) (just a very simple will) -
    one executor: myself, substitute executor her daughter
    everything goes to me if I die go to her daughter
    Didn't say anything about why nothing go to her daughter.
    Didn't say anything about husband.
     
  2. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Who is the lawyer acting for? You or the estate? He or she would be wanting to advise on possibilities.

    Probate will be granted on the last will, if it is valid. The court registrar will decide in the first instance based on all the paperwork evidence such as. They will want affidavits from various people as to the circumstances of the will.

    A sister challenging it is a separate matter.

    Its more likely the friends might argue incapacity as they are the ones missing out. The sister might make a family provision claim - she is an illegible person and hasn't been provided for. BUt that is up to her whether to try it on.
     
  3. Happykid

    Happykid Member

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    Hey Terry again. Lawyer is applying probate for me as I'm the Executor of last will, I guess that mean he's acting for me? Doubt her friends will argue her capacity, I wonder what affidavits I will need for the court? Will the court look at the old will for the last will application? Thanks.
     
  4. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Yes they will want to know about previous wills and may want a copy
     
  5. thesuperman

    thesuperman Well-Known Member

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    How could they argue it if they didn't know they were entitled to anything in the previous will?
     
  6. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Don't go telling them. They might be able to request a copy of the wills though
    Legal Tip 224: Who can see your will after your dead? Legal Tip 224: Who can see your will after your dead?
     

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