If you are considering contesting a Will in Ireland, one of the most important questions is how long you have to take action.
The answer depends on the type of claim being made.
There is no single time limit that applies to every Will dispute in Ireland. Different deadlines can apply depending on whether you are challenging the validity of a Will, bringing a claim under Section 117 of the Succession Act 1965, seeking an entitlement from an estate, or dealing with another type of probate dispute.
What is clear is that delay can create serious difficulties.
If you believe there may be grounds to challenge a Will or make a claim against an estate, it is sensible to obtain legal advice as early as possible.
Cullen O’Beirne Solicitors advise individuals, beneficiaries, executors and families in relation to contested Wills, inheritance disputes and probate litigation throughout Ireland.
Is There a Time Limit for Contesting a Will in Ireland?
Yes, time limits can apply, but the relevant deadline depends on the legal basis of the claim.
This distinction is important because the phrase “contesting a Will” is commonly used to describe several different types of dispute.
For example, a person might be:
- challenging whether a Will is legally valid;
- alleging that the deceased lacked testamentary capacity;
- alleging undue influence;
- questioning whether the Will was properly executed;
- alleging fraud or forgery;
- bringing a Section 117 claim as a child of the deceased;
- claiming an entitlement to part of an estate; or
- disputing the conduct of an executor.
These are not necessarily governed by the same time limits.
What Is the Time Limit for a Section 117 Claim?
This is one of the clearest statutory deadlines in Irish succession law.
Under Section 117 of the Succession Act 1965, a child of a person who has made a Will may, in appropriate circumstances, apply to court where they claim that their parent failed in their moral duty to make proper provision for them in accordance with their means.
Section 117(6) provides that an order cannot be made unless the application is brought:
“within twelve months from the first taking out of representation of the deceased’s estate.”
Accordingly, the statutory deadline is 12 months from the first taking out of representation, rather than simply 12 months from the date of death.
That distinction is extremely important.
Does the 12 months run from the date of death?
No.
For a Section 117 claim, the statutory wording ties the 12-month period to the first taking out of representation of the deceased’s estate.
Someone who believes that a parent failed to make proper provision for them should nevertheless avoid waiting until the deadline approaches.
Time may be needed to obtain the Will, understand the estate, gather information, obtain legal advice and prepare the appropriate proceedings
What If I Want to Challenge the Validity of the Will?
A challenge to the validity of a Will is different from a Section 117 claim.
A Will might potentially be challenged because of issues such as:
Lack of testamentary capacity – for example, concerns about whether the deceased had the necessary mental capacity when making the Will.
Undue influence – where it is alleged that another person improperly influenced the deceased in making or changing the Will.
Improper execution – where questions arise as to whether the Will complied with the required legal formalities.
Fraud or forgery – where the authenticity or circumstances surrounding the Will are disputed.
Knowledge and approval – where an issue arises as to whether the deceased knew and approved the contents of the Will.
These cases can involve different limitation and procedural considerations from Section 117 applications.
For this reason, it can be misleading simply to say that everybody has “12 months to contest a Will.”
They do not.
Is There a Six-Year Limitation Period for Claims Against an Estate?
Another provision that can become relevant concerns claims to an estate or to a share or interest in an estate.
Section 126 of the Succession Act 1965 substituted Section 45 of the Statute of Limitations 1957. The substituted provision provides for a six-year limitation period for an action concerning a claim to the estate of a deceased person, or a share or interest in that estate, calculated from when the right to receive that share or interest accrued.
This should not be interpreted as meaning that everyone who wishes to contest a Will automatically has six years.
The nature of the proposed claim must first be identified. Different claims can have different deadlines and procedural rules.
That is why determining the legal basis of the dispute is one of the first steps a probate litigation solicitor should undertake.
Can You Contest a Will Before Probate Is Granted?
A dispute can arise before a Grant of Probate has issued.
If there is a genuine concern about the validity of a Will or the issuing of a Grant, it may be appropriate in certain circumstances to consider lodging a probate caveat.
Under the Rules of the Superior Courts, a person intending to oppose the issuing of a Grant of Probate or Letters of Administration may lodge a caveat in the Probate Office or a District Registry.
A caveat can prevent the Grant from issuing while the relevant issue is addressed.
However, a caveat should not be entered merely because somebody is disappointed with the contents of a Will.
There should be a proper reason for taking the step, and legal advice should ideally be obtained beforehand.
How Long Does a Probate Caveat Last in Ireland?
A probate caveat remains in force for six months.
It can, however, be renewed.
The Rules of the Superior Courts provide that a caveat remains in force for six months and may be renewed from time to time.
This six-month period is sometimes confused with the time limit for contesting a Will.
They are not the same thing.
Six months is the period for which the caveat itself ordinarily remains in force. It is not a general rule that a Will must be challenged within six months
What Happens if Someone Challenges My Caveat?
person seeking the Grant can take steps to challenge, or warn, the caveat.
The current Probate Office rules provide that an appearance to a warning should be entered within 14 days of service. If no appearance is entered, steps can be taken to clear the caveat.
If an appearance is entered following a warning, removing the caveat may require the consent of the parties or a court order.
This illustrates why probate disputes can become procedurally complicated very quickly.
Can You Contest a Will After Probate Has Been Granted?
Potentially, depending upon the nature of the case.
The fact that a Grant of Probate has issued does not necessarily mean that every possible dispute concerning the Will or estate has disappeared.
However, the legal and practical position can become considerably more complicated once probate has been granted and particularly once estate assets have been distributed.
The relevant limitation period will depend upon the type of claim being considered.
Anyone discovering concerns about a Will after probate has issued should therefore obtain advice promptly rather than assuming that it is either automatically too late or that there is plenty of time remaining.
What If the Estate Has Already Been Distributed?
Again, this depends on the circumstances.
Once an estate has been administered and assets have been transferred or distributed, resolving a dispute may become significantly more complicated.
Questions may arise about:
the executor’s actions, payments already made to beneficiaries, property that has been transferred or sold, the ability to recover distributed assets and the particular legal remedy being sought.
This is another reason why early intervention can matter in probate litigation.
What If I Only Recently Discovered the Problem?
Some people do not become concerned about a Will immediately after a death.
For example, you may only later discover that:
- a new Will was made shortly before death;
- a longstanding Will was substantially changed;
- another person became heavily involved in the deceased’s affairs;
- the deceased was experiencing significant cognitive difficulties;
- an unexpected beneficiary received most of the estate;
- an earlier Will contained very different provisions; or
- there may have been problems with how the Will was prepared or signed.
The fact that information has only recently come to light does not automatically determine the limitation position.
The nature of the claim, when the relevant rights accrued and the surrounding facts need to be examined.
Does Fraud Affect the Time Limit?
Potentially.
Limitation legislation contains special provisions concerning fraud and certain claims involving trustees. For example, Section 44 of the Statute of Limitations 1957 provides that no limitation period fixed by that Act applies to specified claims against a trustee involving fraud or fraudulent breach of trust, or the recovery of trust property retained or converted by the trustee.
However, this does not mean that every allegation of fraud in a probate dispute has no time limit.
Fraud cases are particularly fact-sensitive and specialist legal advice should be obtained.
Why You Should Not Wait Until the Deadline
Even where a limitation period appears to leave substantial time, waiting can damage the practical ability to investigate a Will dispute.
Evidence can become harder to obtain.
Witnesses’ memories can fade.
Estate assets may be distributed.
Property may be sold.
Relevant documents may become more difficult to locate.
Executors and beneficiaries may have changed their position in reliance upon the Will.
Medical records, solicitor files, earlier Wills, correspondence and witness evidence can all become important when investigating a disputed Will.
Obtaining advice early therefore isn’t simply about meeting a statutory deadline. It can also be important for preserving evidence and protecting your position.
Contact Cullen O’Beirne Solicitors Today
For more information on Wills and Probate Disputes, speak with a solicitor today
Frequently Asked Questions
How long do I have to contest my parent's Will in Ireland?
It depends upon the legal basis of the proposed challenge.
If you are considering a Section 117 claim, the application must be brought within 12 months from the first taking out of representation of the deceased’s estate.
If you are challenging the validity of the Will or bringing another type of estate claim, different rules may apply
Is it six months to contest a Will in Ireland?
There is no general rule that everybody has six months to contest a Will.
The six-month period commonly encountered in probate practice relates to the duration of a probate caveat before renewal.
That is different from a limitation period for bringing a substantive legal claim.
Is it 12 months to contest a Will?
Not necessarily.
Twelve months is particularly important for Section 117 applications by children, calculated from the first taking out of representation.
Other Will and estate disputes may have different limitation periods.
Can I challenge a Will after a Grant of Probate?
Depending on the nature and circumstances of the claim, a dispute may still arise after a Grant has issued.
However, you should obtain advice immediately because the position can become more complicated as the administration of the estate progresses.
Can I challenge a Will years after someone died?
Possibly, but the answer depends upon the claim and the applicable limitation rules.
For example, the Succession Act’s substituted Section 45 of the Statute of Limitations provides a six-year period for certain claims to an estate or a share or interest in it, running from when the right to receive that share or interest accrued. That provision should not be treated as a universal six-year period for all Will challenges.
What should I do if I think a Will should be challenged?
Obtain legal advice as soon as possible.
A solicitor can determine what type of claim may exist, whether a Grant has issued, what deadline applies, whether a caveat should be considered and what evidence should be preserved.
Concerned About a Will? Speak to Cullen & O'Beirne Solicitors
If you believe that a Will may be invalid, have been excluded from a parent’s Will, are considering a Section 117 claim, or are involved in another inheritance or probate dispute, time can be important.
Cullen O’Beirne Solicitors advise individuals, beneficiaries, executors and families in relation to probate litigation, contested Wills, inheritance disputes, Section 117 claims and executor disputes throughout Ireland. The firm’s existing probate litigation practice covers challenges to Will validity, capacity and undue influence issues, caveats, Section 117 claims and disputes concerning estate administration.
Contact Cullen O’Beirne Solicitors to arrange a confidential consultation.
