The Irish courts have traditionally taken the view that the wishes of a deceased are primary and as such, the courts are reluctant to set aside the wishes of a deceased person. Contentious Probates are proportionately less frequent in Ireland than in the UK or US.
Disputes, where there is a will, are less common than where there is no will and no direction for the deceased as to how assets are to be divided.
There are however several grounds for challenging a will in Ireland. Wills can be challenged if the maker of the will was under undue influence or lacked capacity at the time of making the well. Wills can be challenged if a party is aggrieved at being left out of the will or if the will does not provide for a spouse or children.
There are strict time limits for contesting a will in Ireland so you should get advice immediately if you are thinking about challenging or contesting a will.
The main grounds to challenge or contest a will in Ireland are:
• The will is invalid as it does not comply with the statutory requirements to make a valid will.
• Lack of testamentary capacity.
• The testator was under “undue influence” from another party at the time of making the will and the will does not reflect their own wishes.
• The will does not provide for a spouse or children in accordance with the Succession Act 1965
• The Claimant is a Cohabitant of the deceased.
Validity of a Will
In order for a will to be valid, the will must be in writing, it must be signed at the end by the testator (the person making the will) in the presence of two witnesses present at the same time and the witnesses must sign in the presence of the testator. While this is a relatively simple requirement it is often not the case with many home made wills. On the beneficiary side- the witnesses cannot be beneficiaries or spouses of beneficiaries, as this will nullify any benefit they can take under the will.
If the testator did not understand the meaning of what they were doing at the time of making the will. For example, if a will was being contested due to testator suffering from dementia, was the testator capable at the time of making the will of understanding what they were doing. The burden of proof to establish that the testator did not have capacity to make the will is on the person making the claim. Simply claiming the testator had for example Azlheimers does not render the will invalid. Evidence from the testators solicitor, doctor and family is heard in such a case to establish the circumstances of the making of the will and the mental condition of the testator.
In caselaw the courts have set out that factors they utilise when considering the testamentary capacity of the testator.
1. Did they understand the nature of the act and effect of making the will
2. Did they understand the extent of the property of which they were disposing of
3. Were they able to comprehend and appreciate what they were doing.
Undue influence is where a person exerts pressure on the testator to make a will which benefited themselves. Relevant factors 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 not provided for in earlier wills.
The onus is on the claimant to show 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 of proof in such claims is high.
Spouses or dependents under the Succession Act 1965
The spouse is entitled to a legal right share 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 also elect to take the family home
The election must be made 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.
A child can apply to the court pursuant to Section 117 of the Succession Act 1965 for a share in the estate if it does not make proper provisions for them. They must show that the deceased failed in their moral duty to make proper provisions for the child.
The criteria taken into account by the court when deciding whether the deceased failed in their moral duty to make proper provision for the child include:
1. The amount left to the surviving spouse or the value of the legal right if the surviving spouse elects to take this,
2. The number of the testator’s children, their ages and their position in life at the date of the testator’s death,
3. The means of the testator,
4. The age of the child whose case is being considered and his or her financial position and prospects in life; and
5. Whether the testator has already in his lifetime made proper provision for this child.
It should be borne in mind that there is no automatic right of a child to a share in their parents estate. The onus is on the person making the claim.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.
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. 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.
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 under this section, 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.
If you wish to consider contesting a will or are worried that some other party may be considering contesting your will- please contact us for advice. We have considerable experience in contentious probate cases and have built a nationwide reputation as contentious probate solicitors.
Contesting a Will FAQ’s
Q. Can you contest a will if you’re not in it?
You can contest a will if you are excluded from the will. There are several common grounds to contest a will and we can advise if you have a case to contest a will.
Q. When can you contest a will?
A will only takes effect from the date of death. A will cannot be challenged until after the date of death. You should seek advice as soon as you are considering contesting a will.
Q. Can a will be contested after probate?
Yes. A will can be contested after a Grant of Probate has issued. In most it is necessary to wait until after a Grant of Probate has issued and an executor appointed to issue proceedings against an estate
Q. How long do you have to contest a will?
There are different time limits for different actions challenging a will:
• A Section 117 application by children must be brought within 6 months of the date of the Grant of Probate
• A Section 172 application by a cohabitant of the testator must be brought within 6 months of the date of the Grant of Probate
• The right of a spouse to elect to take the legal right share must be exercised within six months of receipt of notification of the right to election, or within one year from the date of death.
Q. How much does it cost to contest a will?
A challenge to a will is brought in the Circuit or High Court and varies due to the complexity of the estate, the length of the court hearing.
Q. Who pays to contest a will?
Who is responsible for the costs is at the discretion of the judge . In practice the costs are usually paid out of the estate provided the litigation is reasonable in the circumstances. If a court finds that the claim was unreasonable or frivolous they can penalise a claimant by awarding the costs of the action against them
Q. What happens when a will is contested?
The estate is not finalised and distributed until after the completion of the court proceedings. Once the court proceedings are completed the executor can then proceed to distribute the estate.
Q. How long does it take to contest a will?
There are number of factors which will affect the timescale of a challenge. If proceedings are issued the time-scale of the case will be influenced by the caseload of the Circuit or High Court area the case is taken in, The timescale also depends on how quickly the parties engage with the litigation process.
Q. What are the chances of successfully contesting a will? What is the success rate?
Each case depends on specific facts, so the chances of success vary on a case by case basis. We are happy to advise you on the potential outcomes based on the particular circumstances of your case.
For advice on making a will in Ireland
We offer a professional and confidential service to discuss all aspects of preparing your will and planning for your estate. View our will and probate service page or contact us for advice and/or assistance regarding making a will.