We have set out below an overview of Contesting a Will and Intestacy. If you have more specific queries please contact us. We would be delighted to be of assistance.
In order to contest a Will there must be grounds to do so. It is not sufficient that an individual is unhappy with the contents of the Will.
Some of the most common grounds of challenge to Wills are: –
Lack of Capacity:
The deceased must have had the required mental capacity at the date on which the Will was made. If the deceased did not have the necessary capacity, the Will may not be valid and can be subject to challenge through the Courts. However, there must be some evidence of lack of capacity and the Courts will not set aside a Will lightly. In cases where a Will is contested due to lack of capacity, the facts of the individual case will be crucial and each case is dealt with on its own unique facts and circumstances.
Undue Influence
A Will can also be challenged on the basis that the deceased was under the influence of another party and therefore did not make the Will freely. Again, this ground for challenge is very fact specific and these challenges are dealt with on a case by case basis.
Failure to Provide for Certain Family Members:
Under the Succession Act 1965, you are limited as to who you can leave your Estate to and in what amount or share.
Children
- Parent’s Will
A child of a deceased person can make an application to Court under s117 of the Succession Act 1965 for a share in their parent’s Estate if their deceased parent has not made any or made little provision for them in their Will. The test that the Court will follow in such an application is whether “the deceased has failed in his/her moral duty to make proper provision for the child in accordance with his means, whether by his/her Will or otherwise”.- The time limit for a child to make such an application is limited unfortunately to only 6 months from the date of Grant of the Estate of the deceased.
- There are no grounds for extension of this 6 month timeframe.
- Such actions must be taken immediately by the child/or children who are seeking to claim from the estate of a parent, as otherwise they may find themselves statute barred or prevented from doing so.
These applications depend very much on the position of the child and the history between the child and the deceased parent.
- Parent- Intestacy
If the married/single parent dies without making a Will their Estate is distributed in accordance with the Rules of Intestacy. These Rules govern the entitlement to inherit strictly and there is no basis to challenge this distribution. - Civil Partner Intestacy
Where a Civil Partner dies leaving a Civil Partner and child/children surviving. A Section 67A(3) Application may be brought by THE NATURAL CHILD OF A DECEASED CIVIL PARTNER.Essentially, this application allows the Court to enlarge the share of a natural child of a Civil Partner and provides that on application the child cannot be awarded less than their share on intestacy and no more than their share if their parent had died. The effect of this application is for the natural child of a deceased Civil Partner to interfere with the share on Intestacy of the surviving Civil Partner so if the Court awards additional provision for the child the surviving Civil Partner’s share will be reduced.- The time limit for a child to make such an application is limited unfortunately to only 6 months from the date of Grant of the Estate of the deceased.
- There are no grounds for extension of this 6 month timeframe.
- Such actions must be taken immediately by the child/or children who are seeking to claim from the estate of a parent, as otherwise they may find themselves statute barred or prevented from doing so.
- Spouses and Civil Partners Right to Challenge their share on Intestacy:
A Spouse or Civil Partner of a deceased person has a right to be left at least one-third of their husband/wife/Civil Partner’s Estate under s111/A of the Succession Act 1965. There may be situations however where the deceased may wish to disinherit their Spouse/Civil Partner. In such a case where the effected surviving Spouse/Civil Partner has not renounced their legal right share (for example in/under any family law orders or agreements) the entitlement to the legal right share of the surviving Spouse/Civil Partner vests in them automatically. The surviving Spouse/Civil Partner does not need to take any legal action to claim the right, they have the right automatically unless they disclaim it or have previously disclaimed it.Even though no election by the surviving Spouse/Civil Partner is necessary unless they receive or claim the share within 6 years (of date of death of deceased or 6 years from the date they receive notification of their right from the executor of the estate) they would become statute barred and prevented from making claim to their legal right share.
b. Cohabitees Right to Challenge their share on Intestacy:
Unlike a Spouse and Civil Partner a cohabitee has no right to a legal right share of their deceased partner’s Estate. However, a “qualified cohabitee” (within the meaning of the Civil Partnership & Certain Rights & Obligations of Co-Habitants Act 2010) can bring an application to the Court for provision to be made for them from their deceased partner’s Estate.The meaning of a “qualified cohabitee” under the Act essentially means an adult who was, immediately before the relationship ended by death or otherwise, in a relationship living with another adult as a couple for (a) 2 years of more where they are the parents of a dependent child or (b) five years or more in any other case.Essentially, a qualified cohabitee can ask the Court to make provision for them from the Estate of their deceased partner. The provision that can be made cannot exceed the share which a Spouse or Civil Partner would inherit had the deceased been married or entered a Civil Partnership rather than been cohabiting.
The criteria which the Court will have regard to are:
- Any family law orders were previously made between the parties such as maintenance, property adjustment or pension adjustment orders,
- If the deceased partner made any provision for their partner in their Will,
- The interests of those entitled to the Estate
- The detailed circumstances of the partners and the factor of financial dependency of the surviving partner on the deceased partner.
- The timeframe for such application to be brought is only 6 months from the date of Grant of the Estate of the deceased.
- The application can only be brought within two years of the relationship ending (except where there are exceptional circumstances). This allows for the situation where a cohabitation relationship ends and then one partner dies.
- The Legal Personal Representative of the deceased has no obligation to notify the surviving partner who is a qualified cohabitee of the death of the deceased or indeed of their rights under the Act.
Our Services
As Specialist Solicitors in Probate, we are happy to assist or advise you in any aspect of your Probate Application. If you need more information, you can contact us.
You can start by telling us your query or call us on 1850 940 140 or +353 (0)1 649 9900, Email us at probate@traceysolicitors.ie or we can call you back.
After discussing your situation with you, we can advise you how to proceed. We look forward to hearing from you.
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