Challenging a Will

When preparing to make your Will it is important to know the circumstances when a valid Will can be challenged so as to avoid the possibilty of your Will being set aside by a court. 

Validity of a Will

It may be possible to challenge a Will on the basis of your Will not being a valid Will and not complying with the legal requirements as set out in The Succession Act, 1965.

Undue Influence

When a person makes their Will and if they are subjected to undue influence that Will can be set aside by a court. Undue influence results in a person making a Will which is not a true reflection of their wishes. 

Expectation

If you made substantial contribution to the upkeep of a property (e.g. a farm) on the understanding that you would be left the property on the death of the owner and the Will makes no provision for you in relation to the property, you should seek legal advice as soon as possible to ascertain any rights you may have. This is most common when a person takes over the day to day running of a farm for an elderly relative on the understanding that they would be left the farm.

Section 117

Under the Succession Act, 1965, section 117 provides that where a child of the deceased can show that the deceased person has failed in their moral duty to make proper provision for a child, in accordance with their needs, then the court may then order such provision be made as the court thinks fit.

It is not to say that simply because you are a child of the deceased person that you have a right to make a claim pursuant to section 117 of the Succession Act, 1965. It is necessary for the child to show a need on their part at the date of death of the deceased and that they deceased had the capacity to provide for the child and they failed to do so.

Previous gifts or inheritance made to the child during their lifetime by the deceased will be taken into account by the court.

The costs of taking a section 117 claim are at the discretion of the court, as determined by the Succession Act, 1965.

It is important to note proceedings must be issued within six months of the date of the Grant of Probate issues in the estate of the deceased. This period of time cannot be extended. After this time a child will not have a right to make a claim.

There is no obligation on the executor of an estate to notify the child of their right to bring a section 117 claim.

Case law in this area over the years has set certain evidence which the courts consider:

1. The child's age and position in life
2. The child's financial means
3. The amount left to the spouse
4. The number of children of the deceased, their age and position in life
5. Whether the child received previous gifts from the deceased

An order of the court cannot effect the legal right share of a surviving spouse. 

As specialist solicitors in this area please do not hesitate to contact us with any queries you may have.

Request a Call Back or contact us directly and one of our team will discuss your Will or Estate and how we can assist you.