The death of a family member is difficult enough without concerns arising about their Will. However, there are circumstances where a Will may be disputed for example, where there are concerns about the deceased’s mental capacity, allegations of undue influence, questions surrounding how the Will was signed, or where a child believes that a parent failed in their moral duty to make proper provision for them.
Contesting a Will in Ireland is a complex legal process and strict time limits can apply. If you have concerns about a Will, obtaining legal advice at an early stage can be important.
In this guide, the probate litigation solicitors at Cullen O’Beirne Solicitors explain the main steps involved in challenging a Will in Ireland, the grounds upon which a Will may be challenged, and what can happen once a dispute arises.
1. Can you contest a Will in Ireland?
Yes. A Will can be challenged in Ireland, but being unhappy with the inheritance you have received or having been excluded from a Will does not by itself mean that the Will is invalid.
The appropriate legal route depends upon the circumstances.
A dispute might concern the validity of the Will itself, the circumstances in which it was prepared or executed, a claim by a child under Section 117 of the Succession Act 1965, the rights of a surviving spouse, or the way in which the estate is being administered.
The Succession Act 1965 contains many of the principal statutory rules governing wills and succession in Ireland.
2. Identify why the Will is being challenged
One of the first steps is establishing the legal basis for the proposed challenge.
Lack of testamentary capacity
For a Will to be valid, the person making it must have the necessary mental capacity when making the Will.
Section 77 of the Succession Act 1965 provides, among other requirements, that a person making a valid Will must be of “sound disposing mind.”
Questions about testamentary capacity can arise where the deceased was suffering from dementia, cognitive impairment or another condition around the time the Will was made.
A diagnosis of dementia does not automatically mean that a Will is invalid. The relevant circumstances and evidence surrounding the making of the particular Will need to be examined.
Medical records, evidence from the solicitor who prepared the Will, witness evidence and other contemporary documentation can therefore become important in a probate dispute.
Undue influence
A Will may also be challenged where it is alleged that the deceased was subjected to undue influence.
These cases can be particularly fact sensitive. Concerns can arise, for example, where a vulnerable person becomes dependent upon another individual and subsequently makes an unexpected change to their Will substantially benefiting that person.
The existence of an unexpected Will does not, on its own, establish undue influence. The surrounding circumstances and available evidence need to be carefully considered.
Problems with the execution of the Will
A Will must satisfy the legal formalities governing its execution.
Section 78 of the Succession Act 1965 deals with the signing and witnessing requirements for a Will.
Questions may therefore arise about matters such as the signature, witnesses or the circumstances in which the document was executed.
The Courts Service specifically identifies questions about whether a Will is valid or properly signed among the common reasons why a caveat may be lodged.
Knowledge and approval
Another issue can be whether the deceased actually knew and approved the contents of the Will they signed.
This can become particularly relevant where the circumstances surrounding the preparation or execution of the Will give rise to concerns.
Section 117 claims by children
Not every contested estate involves an allegation that the Will itself is invalid.
Under Section 117 of the Succession Act 1965, a child of a testator may apply to court where it is alleged that the deceased parent failed in their moral duty to make proper provision for that child in accordance with their means.
The court considers the matter from the perspective of a prudent and just parent and may take into account the circumstances of the child, the deceased’s other children and other relevant circumstances.
Importantly, this is different from arguing that the Will itself is invalid.
3. Speak to a probate litigation solicitor early
If you believe there may be grounds to contest a Will, obtaining specialist advice early can be important.
Probate disputes can involve strict deadlines, and the appropriate action will depend upon whether a Grant of Probate has already issued, the type of claim being considered and the circumstances of the estate.
A solicitor can assess matters such as:
- the Will and any earlier Wills;
- the circumstances in which the Will was prepared;
- your relationship with the deceased;
- the composition and approximate value of the estate;
- relevant correspondence or communications;
- medical or capacity concerns;
- possible undue influence;
- lifetime gifts;
- the position of other beneficiaries; and
- whether probate has already been granted.
Early advice can also help determine whether steps should be taken to prevent a Grant of Probate issuing while concerns are investigated.
4. Consider whether a probate caveat is appropriate
Where probate has not yet been granted, it may be appropriate in some cases to lodge a caveat.
A caveat prevents a Grant of Probate or Letters of Administration from issuing until the relevant issues have been addressed. The Courts Service identifies validity, proper execution, capacity and undue influence among common reasons for lodging one.
A caveat should not simply be used as a tactical device in an inheritance disagreement. Legal advice should be obtained about whether there is a proper basis for lodging one.
Under the Rules of the Superior Courts, a caveat ordinarily remains in force for six months, although it can be renewed.
If a caveat is challenged by the person seeking the Grant, a formal warning may be issued. An appearance can then be lodged in response. The Courts Service states that an appearance should be lodged within 14 days of service of the warning. Once an appearance has been lodged, the caveat can only be set aside by court order or with the consent of the parties.
This is one reason to seek advice before lodging or responding to a caveat
5. Gather the evidence
A contested probate case can turn heavily on evidence.
Depending upon the nature of the dispute, relevant evidence may include the deceased’s Will and previous Wills, medical records, the Will-drafting solicitor’s file, correspondence, emails, text messages, financial records, witness evidence and information concerning the deceased’s circumstances and relationships.
A dramatic change between an earlier Will and the final Will may warrant investigation, but a change itself does not establish wrongdoing.
The objective is to understand what happened when the Will was prepared and executed and whether there is evidence capable of supporting the particular legal claim being advanced.
6. Understand the time limits
This is particularly important.
There is not one universal deadline for every type of Will dispute. The relevant limitation period depends upon the nature of the claim.
One particularly important deadline concerns Section 117 claims.
Under the current wording of Section 117(6) of the Succession Act 1965, an application must be made within 12 months from the first taking out of representation of the deceased’s estate.
Other probate disputes may be subject to different procedural or limitation considerations.
For that reason, anyone considering challenging a Will should avoid assuming that there is plenty of time simply because an estate has not yet been distributed.
7. Can a Will dispute be settled without going to court?
Yes. A contested Will does not necessarily have to result in a full court hearing.
Once the issues and evidence are understood, the parties may be able to resolve some probate disputes through correspondence, negotiation or mediation.
Whether settlement is appropriate will depend upon the facts, the legal issues involved and the positions taken by the parties.
Where a resolution cannot be reached, court proceedings may be required.
8. What happens if the dispute goes to court?
The procedure depends upon the nature of the claim.
In a probate action, the court may be asked to determine issues concerning the validity of a Will or entitlement to a Grant. Court rules specifically provide for probate actions and address the position where a caveat has been lodged and proceedings are subsequently brought.
Other inheritance disputes, including Section 117 applications, involve different legal questions.
Probate litigation can therefore involve detailed documentary evidence, witness evidence, expert evidence in appropriate cases and legal submissions concerning succession law.
This is why the strength of a potential claim should be carefully assessed before litigation is commenced.
9. What happens if the Will is successfully challenged?
The outcome depends upon the type of challenge.
Where a particular Will is found not to be valid, an earlier valid Will may become relevant. If there is no valid Will governing the estate, the rules of intestacy may apply.
A successful Section 117 claim is different. The court may order that provision be made for the child out of the estate where the statutory requirements have been established.
The result therefore depends upon what type of claim has been brought and what the court decides.
10. What if you are defending a Will?
Probate litigation does not only concern people seeking to challenge Wills.
Executors and beneficiaries can find themselves having to defend a Will or an estate against a challenge.
If you are an executor and receive notice of a caveat, a solicitor’s letter alleging that a Will is invalid, a Section 117 claim or notice of court proceedings, it is important to obtain advice about your responsibilities and the appropriate response.
Executors have obligations in administering an estate and should be particularly careful where competing claims have arisen.
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Frequently Asked Questions
Can I contest my parent's Will if I was left nothing?
Potentially. The appropriate legal route depends upon the circumstances.
A child may, for example, consider a Section 117 application alleging failure by a parent to make proper provision in accordance with their moral duty. This does not mean that every child is automatically entitled to a particular share of a parent’s estate.
Can I contest a Will because the deceased had dementia?
A diagnosis of dementia does not automatically invalidate a Will.
The issue in a capacity challenge concerns whether the deceased had the necessary testamentary capacity at the relevant time. Section 77 requires a person making a Will to be of sound disposing mind.
Can I stop probate while a Will is investigated?
Where a Grant has not yet issued and there is an appropriate basis for doing so, a caveat can prevent the Grant from issuing while the relevant issues are addressed.
Legal advice should be obtained promptly because lodging a caveat can have significant procedural consequences.
How long does a caveat last in Ireland?
A caveat ordinarily remains in force for six months and may be renewed
How long do I have to make a Section 117 claim?
Section 117 currently provides that the application must be made within 12 months from the first taking out of representation of the deceased’s estate.
Do contested Wills always end up in court?
No. Depending upon the circumstances, disputes can sometimes be resolved through negotiation or mediation. Where agreement cannot be reached, litigation may be necessary.
Speak to a Probate Litigation Solicitor
If you are concerned about the validity of a Will, have been excluded from an estate, are considering a Section 117 claim, or are an executor or beneficiary facing a challenge, obtaining advice at an early stage can help clarify your position and the options available.
Cullen O’Beirne Solicitors advises on contentious probate, Will disputes, executor and beneficiary disputes and inheritance claims in Wicklow,Dublin, Carlow, Wexford and throughout Ireland.
Contact our probate litigation team to discuss your circumstances.
