Disputing
or challenging a Will
Disputes regarding wills can create huge animosity amongst family
members.
Susan McLoughlin has extensive experience of handling a wide variety
of contentious and non-contentious probate claims.
Some of her 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.
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Grounds for challenging a will*
There are 4 main grounds upon which wills can be challenged, as
set out below.
1. The will is invalid: It does not fulfil the requirement legal
formalities, for example it has not been signed or witnessed properly.
2. 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 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 so if the will was made
shortly before death.
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 with 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.
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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 uncles 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 challenging a will so it
is very important that you seek legal advice in relation to your
claim as soon as possible.
Contact Susan McLoughlin for
further information or to arrange a consultation
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