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Can a will be contested after probate has been settled

Foley, AL |

my aunt is contesting my great uncles will ... it has been probated and settled..
she is saying that its invalid and she was unaware of probate

this is in Alabama will was sent to probate in Oct of 2010 settled in Sept 2011 contest was recorded in 2012

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Attorney answers 3

Posted

There are many additional facts relevant to your question that are not stated but, in general, I suspect the answer to your question is No. I'm not admitted to practice in Alabama but most states have a very limited window in which a will contest action can be filed (in Ohio, it is three months from the date proof of notice is filed with the probate court). Also, only certain people can challenge the will, and these are usually limited to those persons who would have inherited had the decedent died intestate. Your aunt may or may not have been one of those persons. If she was not, then she wasn't entitled to notice. You will need to consult with an experienced estate litigator in the county in which the probate was conducted and present him/her with all of the relevant facts to get a firm answer on this one. If your aunt was entitled to notice and did not receive it, then maybe the statute is still open. However, the probate would probably not have been permitted to proceed if the executor failed to file proof of the service with the Court. An Alabama attorney (if that is where the case was filed) will have to answer this for you.

This response contemplates only the laws of Ohio and is not intended to apply to other jurisdictions. None of the information in this response should be used or relied upon as legal advice or legal opinion about specific matters, facts, situations or issues. Viewing it does not establish an attorney-client relationship between you and Sherrille D. Akin, the law firm of Isaac, Brant, Ledman & Teetor LLP, or any of its individual attorneys

Posted

The previous answer to the question is very good. I would like to add a few comments from the perspective of an Alabama estate litigator. First, if your aunt was entitled to notice under Alabama aw and did not receive the notice or waive it, then she could possibly be able to file a will contest. More information and a detailed review of the probate court's file would be needed. Second, even if she is able to file a will contest due to some defect in the procedure that does not mean that she followed Alabama's will contest procedure has been followed correctly. Third, even if she survives those two procedural hurdles, she still has to win the will contest. You should contact an attorney experienced in will contest litigation and have him or her review the file. I hope this helps.

Thad A. Davis is an Alabama attorney. As such, his responses on this site are limited to his understanding of the facts as cited in the posted question and his understanding of the law in his state. No answer should be considered legal advice, nor does an answer create an attorney-client relationship. Anyone desiring specific legal advice should consult an attorney in the relevant state.

Asker

Posted

i can give more back ground info.... the will was my great uncle .... he left the property to my mom.... his only living sister was a wittness to the will...he was a bachlor.. he was precedded in death by his parents grandparents 2 sisters and a brother....my mom is his neice ...... the aunt is question was married to my mom's brother who has also passed away... the deaths were in the order my great uncle in sept of 2010, his sister in april of 2011 and my mom's brother in dec 2011..... in 2012 my aunt ( mom's brothers wife ) decided to contest the will .... which is where we stand to day ... an attorney did the probate for my mom .... everything processed.... estate had final probate in summer/fall of 2011...... hope that helps with back ground....

Asker

Posted

and everyone in the family knew about the will it was done in 2006 if i remember correctly

Thad Austin Davis

Thad Austin Davis

Posted

Thank you for the background. I think you will need to take this to a probate attorney experienced in probate litigation. I wish you all the best.

Posted

There are a lot of fact questions that must be answered to give an adequate answer. If the estate has been probated and the 6 months has already passed, you would have to show fraud on the part of the Personal Representative in not notifying your aunt of the probate of the will.

Your aunt will need to gather up all of the probate documents and meet with an attorney asap and discuss what steps need to be taken.

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