The distribution of a person’s estate after their passing can often raise complex concerns for the people they left behind. Unfortunately these concerns can ultimately lead to disagreements down the line. At Orpen Franks Solicitors LLP our team of solicitors act in both bringing and defending probate claims and in inheritance disputes.
We provide advices on all matters relating to inheritance, including in relation to whether you have been adequately provided for under the will or if you would like to contest a will. If you are a beneficiary and would like advice on the validity of a will or if you are an executor and are faced with a claim against an estate, we can provide expert assistance.
We will guide you through this process and ensure you know exactly what to expect.
We advise our clients in the following contentious probate areas:
How To Contest A Will in Ireland
Challenging and Defending the Validity of a Will
We act on behalf of clients who feel aggrieved at being left out of a will or not getting what was promised to them during someone’s lifetime. We also act for executors of estates to any defeat claims against the estate. Our team will guide you through this process and where possible, try to resolve matters amicably without the need to go to court.
Beneficiary or Expectant Beneficiary
If you wish to contest a will, you should get advice immediately as there are strict timeframes that must be complied with.
The main reasons to challenge a will are:
- Validity / Construction of the will
- Lack of testamentary capacity
- Undue Influence
- The will does not provide for a spouse or children in accordance with the Succession Act 1965
Validity / Construction of a Will
The first thing our team will do is ensure that there is a valid will. A will can be challenged on the basis that it does not comply with Irish law. In order to be valid, the will must be in writing, it must be signed at the end by the testator in the presence of two witnesses present at the same time and the witnesses must sign in the presence of the testator. The witnesses can’t also be beneficiaries or spouses of beneficiaries, as the gift will be deemed invalid. If you have reason to challenge any of the requirements, an action can be brought.
A testator must also be of sound mind which is dealt with below.
Lack of testamentary capacity
A will can be challenged by claims that the testator did not have capacity to make a will at the time and did not understand the meaning of what they were doing. These claims often arise where a will was made or changed while the testator was suffering from dementia or Alzheimer’s disease. However, it is important to be aware that a person can lose capacity at any age due to mental illness or an acquired brain injury.
The person making a claim that the testator did not have capacity to make a will must establish that the testator was incapable of making a valid will. The proof must go beyond merely identifying a mental illness or other condition which affects the mind. In the absence of medical evidence from the testator’s doctor, a court is likely to pay more heed to the evidence of the testator’s solicitor and of the people closest to the testator.
The test which has been used by the court sets out that the testator must:
- Understand the nature of the act and its effect
- Understand the extent of the property of which he or she is disposing and
- Be able to comprehend and appreciate the claims to which he or she ought to give effect.
Therefore, in order to succeed in challenging a will on the grounds of lack of capacity, a claimant must show that the testator did not understand the nature of what they were signing.
Undue Influence
A claim of undue influence is made where there is a belief that someone exerted pressure on the testator to make a will which benefited themselves. If you believe that the testator was under undue influence by another person, advice should be sought at an early stage. It can be difficult to prove and factors would include whether the deceased was dependant on that person at the time the will was made, whether the deceased was frail or ill and therefore more vulnerable, whether the will made amendments and included a person who was not provided for in earlier wills.
A claimant bears the burden of proof of showing that the testator was coerced into making a disposition in favour of a particular beneficiary. There must be positive proof of coercion overpowering the volition of the testator so the burden on the claimant set out by the court is high.
The will does not provide for dependants in accordance with the Succession Act 1965
Spouses
The spouse of the deceased is entitled to a legal right share in the estate regardless of whether or not provision was made in the will. If the deceased had children, the legal right share is one third of the estate and if the deceased had no children, the legal right share is half of the estate. The legal right share ranks in priority to all other devises and bequests under a will.
A spouse can make an election to take his or her legal right share within a year from the date of the grant of probate or within six months of receipt of notification of their inheritance, whichever is the later.
Children
A child can make an application to the court pursuant to Section 117 of the Succession Act 1965 for a share in the estate if it does not make proper provision for them. They must show that the deceased failed in their moral duty to make proper provision for the child. There are strict timelines for bringing a claim so it is imperative that advice is sought at an early stage.
Section 117
There are a number of criteria which can be taken into account by the court when deciding whether the deceased failed in their moral duty to make proper provision for the child including:
- The amount left to the surviving spouse or the value of the legal right if the surviving spouse elects to take this,
- The number of the testator’s children, their ages and their position in life at the date of the testator’s death,
- The means of the testator,
- The age of the child whose case is being considered and his or her financial position and prospects in life; and
- Whether the testator has already in his lifetime made proper provision for this child.
Any child seeking to make a claim under Section 117 should try as best as possible to identify what if any monies he or she received from the deceased in the past.
A section 117 application is not available to a child where the deceased died without a Will as the child is automatically entitled to a third of the estate.
It should be noted that this is an evolving area of law so the criteria required is subject to change.
Cohabitants
The Civil Partnership and Certain Rights and Obligations Act 2010 (the “Cohabitants Act) sets out that a cohabitant or civil partner can seek redress from the court if there is no provision for them in the will or the testator died intestate (without making a will). In order to qualify, an unmarried couple must be living together for at least 5 years or 2 years if they have a child together. There are short timelines within which to bring an application so advice should be sought shortly after the death of a partner.
Section 172(2) of the Cohabitants Act sets out what a Court will consider when deciding if someone qualifies as a cohabitant. These are;
- the duration of the relationship;
- the basis on which the couple live together;
- the degree of financial dependence of either adult on the other and any agreements in respect of their finances;
- the degree and nature of any financial arrangements between the adults;
- whether there are one or more dependent children.
- whether one of the adults cares for and supports the children of the other; and
- the degree to which the adults present themselves to others as a couple.
If the court makes an order, the inheritance will be taken tax free. If a testator has made provision for their unmarried partner in a will, the inheritance will be subject to Capital Acquisitions Tax in the same way as if they were strangers. This is vastly different to the position of a spouse who takes their legal right share and any other disposition tax free.
Contesting a Will FAQ’s
A will can be contested on various grounds, including challenging the validity of the will, claiming that the testator did not have capacity to make a will or was under the undue influence of another person at the time the will was made.
A claim can also be made by a child, spouse or co-habitant if proper provision has not been made for them.
Any person who claims to have an interest in an estate can contest a will. Usually a claim is made by aggrieved family members who were excluded from a will but some claims, such as a claim for estoppel, can be made by any person who relied to their detriment on a promise made by the testator.
A will can only be contested after the death of a testator as it does not take effect prior to then.
Speak to our legal experts in
Probate Litigation
Probate Litigation
The distribution of a person’s estate after their passing can often raise complex concerns for the people they left behind. Unfortunately these concerns can ultimately lead to disagreements down the line. At Orpen Franks Solicitors LLP our team of solicitors act in both bringing and defending probate claims and in inheritance disputes.
We provide advices on all matters relating to inheritance, including in relation to whether you have been adequately provided for under the will or if you would like to contest a will. If you are a beneficiary and would like advice on the validity of a will or if you are an executor and are faced with a claim against an estate, we can provide expert assistance.
We will guide you through this process and ensure you know exactly what to expect.
We advise our clients in the following contentious probate areas:
- How to Contest a Will in Ireland
- Proprietary Estoppel Claims – when the will does not fulfil promises made during the lifetime of the testator
- Challenges to Executors and Trustees
- Acting for charities in relation to their entitlement under a will
How To Contest A Will in Ireland
Challenging and Defending the Validity of a Will
We act on behalf of clients who feel aggrieved at being left out of a will or not getting what was promised to them during someone’s lifetime. We also act for executors of estates to any defeat claims against the estate. Our team will guide you through this process and where possible, try to resolve matters amicably without the need to go to court.
Beneficiary or Expectant Beneficiary
If you wish to contest a will, you should get advice immediately as there are strict timeframes that must be complied with.
The main reasons to challenge a will are:
- Validity / Construction of the will
- Lack of testamentary capacity
- Undue Influence
- The will does not provide for a spouse or children in accordance with the Succession Act 1965
Validity / Construction of a Will
The first thing our team will do is ensure that there is a valid will. A will can be challenged on the basis that it does not comply with Irish law. In order to be valid, the will must be in writing, it must be signed at the end by the testator in the presence of two witnesses present at the same time and the witnesses must sign in the presence of the testator. The witnesses can’t also be beneficiaries or spouses of beneficiaries, as the gift will be deemed invalid. If you have reason to challenge any of the requirements, an action can be brought.
A testator must also be of sound mind which is dealt with below.
Lack of testamentary capacity
A will can be challenged by claims that the testator did not have capacity to make a will at the time and did not understand the meaning of what they were doing. These claims often arise where a will was made or changed while the testator was suffering from dementia or Alzheimer’s disease. However, it is important to be aware that a person can lose capacity at any age due to mental illness or an acquired brain injury.
The person making a claim that the testator did not have capacity to make a will must establish that the testator was incapable of making a valid will. The proof must go beyond merely identifying a mental illness or other condition which affects the mind. In the absence of medical evidence from the testator’s doctor, a court is likely to pay more heed to the evidence of the testator’s solicitor and of the people closest to the testator.
The test which has been used by the court sets out that the testator must:
- Understand the nature of the act and its effect
- Understand the extent of the property of which he or she is disposing and
- Be able to comprehend and appreciate the claims to which he or she ought to give effect.
Therefore, in order to succeed in challenging a will on the grounds of lack of capacity, a claimant must show that the testator did not understand the nature of what they were signing.
Undue Influence
A claim of undue influence is made where there is a belief that someone exerted pressure on the testator to make a will which benefited themselves. If you believe that the testator was under undue influence by another person, advice should be sought at an early stage. It can be difficult to prove and factors would include whether the deceased was dependant on that person at the time the will was made, whether the deceased was frail or ill and therefore more vulnerable, whether the will made amendments and included a person who was not provided for in earlier wills.
A claimant bears the burden of proof of showing that the testator was coerced into making a disposition in favour of a particular beneficiary. There must be positive proof of coercion overpowering the volition of the testator so the burden on the claimant set out by the court is high.
The will does not provide for dependants in accordance with the Succession Act 1965
Spouses
The spouse of the deceased is entitled to a legal right share in the estate regardless of whether or not provision was made in the will. If the deceased had children, the legal right share is one third of the estate and if the deceased had no children, the legal right share is half of the estate. The legal right share ranks in priority to all other devises and bequests under a will.
A spouse can make an election to take his or her legal right share within a year from the date of the grant of probate or within six months of receipt of notification of their inheritance, whichever is the later.
Children
A child can make an application to the court pursuant to Section 117 of the Succession Act 1965 for a share in the estate if it does not make proper provision for them. They must show that the deceased failed in their moral duty to make proper provision for the child. There are strict timelines for bringing a claim so it is imperative that advice is sought at an early stage.
Section 117
There are a number of criteria which can be taken into account by the court when deciding whether the deceased failed in their moral duty to make proper provision for the child including:
- The amount left to the surviving spouse or the value of the legal right if the surviving spouse elects to take this,
- The number of the testator’s children, their ages and their position in life at the date of the testator’s death,
- The means of the testator,
- The age of the child whose case is being considered and his or her financial position and prospects in life; and
- Whether the testator has already in his lifetime made proper provision for this child.
Any child seeking to make a claim under Section 117 should try as best as possible to identify what if any monies he or she received from the deceased in the past.
A section 117 application is not available to a child where the deceased died without a Will as the child is automatically entitled to a third of the estate.
It should be noted that this is an evolving area of law so the criteria required is subject to change.
Cohabitants
The Civil Partnership and Certain Rights and Obligations Act 2010 (the “Cohabitants Act) sets out that a cohabitant or civil partner can seek redress from the court if there is no provision for them in the will or the testator died intestate (without making a will). In order to qualify, an unmarried couple must be living together for at least 5 years or 2 years if they have a child together. There are short timelines within which to bring an application so advice should be sought shortly after the death of a partner.
Section 172(2) of the Cohabitants Act sets out what a Court will consider when deciding if someone qualifies as a cohabitant. These are;
- the duration of the relationship;
- the basis on which the couple live together;
- the degree of financial dependence of either adult on the other and any agreements in respect of their finances;
- the degree and nature of any financial arrangements between the adults;
- whether there are one or more dependent children.
- whether one of the adults cares for and supports the children of the other; and
- the degree to which the adults present themselves to others as a couple.
If the court makes an order, the inheritance will be taken tax free. If a testator has made provision for their unmarried partner in a will, the inheritance will be subject to Capital Acquisitions Tax in the same way as if they were strangers. This is vastly different to the position of a spouse who takes their legal right share and any other disposition tax free.
Contesting a Will FAQ’s
Contesting a Will FAQ’s
A will can only be contested after the death of a testator as it does not take effect prior to then.
Any person who claims to have an interest in an estate can contest a will. Usually a claim is made by aggrieved family members who were excluded from a will but some claims, such as a claim for estoppel, can be made by any person who relied to their detriment on a promise made by the testator.
A will can be contested on various grounds, including challenging the validity of the will, claiming that the testator did not have capacity to make a will or was under the undue influence of another person at the time the will was made.
A claim can also be made by a child, spouse or co-habitant if proper provision has not been made for them.
