Affadavit of Executors, contesting wills etc

[unique]

Hello again
I have a couple of questions
1. If the executors of a will are also beneficiaries, can they (the executors) still challenge a will, or would they need to step down as executors?
2. To obtain probate, executors have to sign an affidavit of executors. If they have done this, can they still contest the will at a later date?
3. What is the time period someone has to contest a will in NSW ?

TIA

 

[AnnGee]

Do you mean challenging a will (issues of validity, capacity, etc.) or making a family provision claim because they think they were not adequately provided for)? Because the answers will be a bit different depending on what you mean.

 

[unique]

Thank you for the response
I didn't realise the distinction. This is new territory for me. I think they'd be pushing uphill making a family provision claim
So if they were to challenge it would have to be on the other issues

 

[AnnGee]

There is nothing that precludes an executor or beneficiary from challenging the validity of a will. What it can mean, however, is that if the will is found to be invalid that they may no longer be executors or beneficiaries (e.g. a previous will may be revived or the deceased is found to have died intestate).

There is a clause in the standard form affidavit that states the executor/s are not aware of any circumstances which raise doubt as to their entitlement of a grant of probate of the will. This is effectively the executors confirming they are not aware of any issues regarding the validity of the will, amongst other things. If the executors are aware of issues regarding validity, the time to make enquiries is prior to making the application for probate - coming back to challenge the will after probate has been granted would likely be very difficult (and costly).

A will can be challenged up until the point that probate has been granted, there is no set time frame as such. Beyond that, a person challenging the validity of a will that has been probated would first need to commence a claim to revoke probate A family provision claim should be commenced within 12 months from the deceased's date of death (although this can be extended by the court in some circumstances).

 

[unique]

Thank you again for your response.

What I hear you saying is that if probate has been granted, then the executors (who are also beneficiaries and children of the deceased) are highly unlikely to challenge the will. That if they were going to, they would have already done so, prior to applying for probate.
Application for probate was made last year, and probate was granted in January '19.

So I can rest easy