Contested Probate Of A Will – Legal Process

Contested Probate of a Will in Hong Kong

Applications may be made to the Court for:

  1. the grant of probate of the will, or letters of administration of the estate if there is no will, of a deceased person;
  2. the revocation of a grant already made; or
  3. a decree pronouncing for or against the validity of a will.

Common Form Or Solemn Form

As a preliminary, it should be noted that where the validity of the will has not been contested it is proved in common form and where it is proved only after it is contested in court it is proved in solemn form. The most important distinction between the two is that a grant in common form is revocable and a grant in solemn form is, subject to two exceptions (where the existence of a later will becomes known or where the grant was obtained by fraud), not revocable.

If a person with an interest that has been prejudiced by a grant in common form wishes to apply to revoke it, he may do so notwithstanding the lapse of time or even the receipt of legacies.

Once a probate claim has been launched any person with an interest is entitled to intervene. However, once a grant in solemn form has been pronounced all the parties and all those with an interest who were entitled to intervene must stand by the result, whether or not they were parties. The position would be different in respect of those of those who had no knowledge of the probate action.

Contested Claim For A Grant Of Probate

Claims relating to the right to apply for a grant are known as probate actions. Essentially, they relate to title and the right to apply for a grant. Accordingly, issues of pedigree or legitimacy are frequently involved. It should be noted, however, that such actions are not the appropriate methods for declarations of legitimacy. As noted above, once the matter has been determined the same question cannot be reopened in another court.

The Revocation Of A Grant

These claims arise when it is alleged that a will proved in common form is invalid or that the grant was obtained, for example, by a person not entitled to it or in an improper manner.

Application For A Decree Pronouncing For Or Against The Validity Of A Will

Here the issue to be determined is whether a will is a valid testamentary document. The claim may be brought by the person named as executor in the will, or, if he does not do so, a residuary legatee or other potential beneficiary. Alternatively, a person opposing the will may apply for a decree pronouncing against it.

There may be occasions where an executor named in the will does not seek to prove it, and here beneficiaries under the will or those entitled under an intestacy may apply to compel the named executor to prove the will.