Contesting Wills - Setting Aside a Judgement
Defendants are entitled to apply to set aside a judgement if they were unaware of the claims being made against them until after the judgement. Once they have found out the a claim has been made against them, they will need to make an application for an order to set aside a judgement.
If you find yourself in theis situation then you will need to obtain an Application Notice Form from the court and support this application with an affidavit or a statement. The courts will usually agree to set aside judgement if you can show that you did not receive the relevant court papers and therefore was not aware of the case against you. A good example of this is when you have moved addresses and all the information was sent to your old address.
When making an application to set aside judgement, the court will book a hearing date, at which time you and the claimant will have to go to the hearing and where you will be able to explain why you want the court to set aside judgement. If the court agrees in your favour to set aside judgement, you will be allowed to put in a defence explaining why you do not agree with the Claimant's claim against you.
The court will issue a timetable to explain the stages and what to do next. An example is when you notify the claimant of what documents you want to disclose at the hearing to prove your defence and also if there are any witnesses, they need to make statements which copies must also be sent to the claimant. If you are actually the claimant and you have a thought that the particulars of claim may not have reached the defendant, you should apply to set aside any judgement which has been made.
The Courts will decide in favour of setting aside judgement for example when an order is made against you in your absence; there may be an error in the judgement; you want to put in a defence and did not have the opportunity to do this; or the proceedings may have not followed the court rules. These can occur in cases of contesting Wills, especially where there have been problems of claims made against you in your absence.
The Civil Procedure Rules governing small claims cases allow a party to apply to set aside a judgement made at a hearing under Part 27, if they were no at the hearing; they were not represented at the hearing; and they have not previously written to the court asking them to decide the claim in their absence. If the party wishes to make an application to set aside judgement under Part 27, they must do so in 14 days of the judgement being served on them.
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Article Tags:
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