Contesting a Will

Disputes regarding wills can create huge animosity amongst family members. Callinan Murphy Solicitors have extensive experience of handling a wide variety of contentious and non-contentious probate claims. Some of their recent work includes:

• Acting for claimants, executors and beneficiaries in claims under the Succession Act 1965.
• Acting on behalf of the estate, executors and/or beneficiaries in the defence of claims made against a will by another family member who is unhappy with the distribution of the estate.
• Acting on behalf of the estate, executors and/or beneficiaries in the defence of challenges made against a will on the grounds of incapacity of the testator(the person who made the will) or undue influence.
• Acting on behalf of claimants in the investigation of claims relating to lack of testamentary capacity.
• Acting on behalf of claimants in the investigation of claims relating to undue influence.
• Acting in professional negligence claims against solicitors arising out of the preparation and execution of wills and the administration of estates.
• Acting on behalf of claimants who were promised legacies in return for certain services by a testator

Grounds for contesting a will

There are 4 main grounds upon which wills can be contested, as set out below.

1.The will is invalid: It does not fulfil the required legal formalities, for example it has not been signed or witnessed properly.
The testator was not mentally or physically able to make his/her will or did not understand what he/she was doing. A will can be set aside by a Court if the testator’s physical or mental condition meant that they were not competent to make a will and/or they may not have understood or approved its terms. This is particularly relevant if the will was made shortly before death.

2. A testator when making his/her will should have been free of pressure or influence from third parties. He/she should have been able to have access to legal advice without interference from any third parties when making his/her will. A will must reflect the free informed wishes of the Deceased. If someone put undue influence on a testator or bullied or tricked them into making a will (or changing their existing will) in terms that did not reflect their true wishes, the Court may set it aside.

3. The will fails to acknowledge prior agreements, debts or promises made by the testator before making the will. The court may be prepared to enforce, in whole or in part, prior agreements and promises made by the testator as to how they would leave their property. A common example is when a nephew in induced by an uncle in to building a house on the uncle’s lands with promises of the lands being left to the nephew in his uncle’s will. However when the will is read out after the death of the uncle, the lands are not left to the nephew despite the promises. In such a case, it may be possible to apply to the courts to enforce the promise which was made to the nephew.

The court will be prepared to correct an obvious mistake in some cases.

4. The will does not make proper provision for the spouse or child of the testator who made the will. Under the Succession Act 1965, which is the main legislation governing wills in Ireland, the husband/wife of the testator can challenge a will if it fails to provide proper provision for him/her. Children of the testator (including adopted children, children born outside marriage and adult children) can also challenge a will if it fails to make proper provision for them. The potential success of such a challenge depends on the facts of the particular case.

Strict time limits apply when contesting a will so it is very important that you seek legal advice in relation to your claim as soon as possible