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 possessed the necessary mental capacity when making the Will. 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, it’s imperative to understand that there must be concrete evidence pointing to a lack of capacity. Furthermore, the Courts don’t take the decision to set aside a Will lightly.
When it comes to contesting a Will due to capacity concerns, the specifics of the individual case are paramount. Consequently, we approach each case by considering its distinct facts and circumstances.
Undue Influence
One can also challenge a Will if another party influenced the deceased, preventing free will creation. We handle such challenges case by case, as they heavily depend on specific facts.
Failure to Provide for Certain Family Members:
The Succession Act 1965 limits whom you can bequeath your Estate to and the amount or share you can allocate.
Children
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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.”
- Unfortunately, a child must make such an application within 6 months from the date the estate of the deceased is granted.
- There are no grounds for extension of this 6 month timeframe.
- The child or children seeking to claim from a parent’s estate must act immediately. Otherwise, they might become statute-barred or face prevention from claiming.
These applications depend very much on the position of the child and the history between the child and the deceased parent.
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Parent- Intestacy
If a married or single parent dies without making a Will, the Rules of Intestacy dictate the distribution of their Estate. These Rules govern the entitlement to inherit strictly and there is no basis to challenge this distribution.
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Civil Partner Intestacy
If a Civil Partner dies with a surviving partner and child/children, the deceased’s natural child can file a Section 67A(3) Application. This allows the Court to adjust the child’s inheritance share. The child can’t receive less than their intestacy share, nor more than if their parent had a will. This application can reduce the surviving Civil Partner’s share if the Court grants the child additional provision.
- Unfortunately, a child has only 6 months from the date of the Estate Grant to make such an application.
- There are no grounds for extension of this 6 month timeframe.
- The child or children seeking to claim from a parent’s estate must act immediately. Otherwise, they might become statute-barred or unable to claim.
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Spouses and Civil Partners Right to Challenge their share on Intestacy:
A spouse or Civil Partner has rights under the Succession Act 1965, s111/A. They’re entitled to one-third of their partner’s estate. However, some may wish to disinherit their Spouse/Civil Partner. If not renounced, this entitlement vests automatically. No legal action is required to claim. But, they must claim within 6 years of death or notification. After this, they can’t claim their legal share.
b. Cohabitees Right to Challenge their share on Intestacy:
Unlike a Spouse or Civil Partner, cohabitees don’t automatically inherit from their deceased partner’s estate. However, a “qualified cohabitee” can seek provision from the Court. This term, defined by the Civil Partnership & Co-Habitants Act 2010, refers to adults living together as a couple.
They must have been together for over 2 years with a dependent child or 5 years without. A qualified cohabitee’s claim can’t exceed what a Spouse or Civil Partner would inherit.
The criteria which the Court will have regard to are:
- The parties previously made family law orders, including 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.
- You must bring the application within 6 months from the date of the Estate Grant of the deceased.
- You can only bring the application within two years of the relationship’s end, unless there are exceptional circumstances. This allows for the situation where a cohabitation relationship ends and then one partner dies.
- Firstly, the Legal Personal Representative of the deceased isn’t obligated to inform the surviving partner about the death. Additionally, if the surviving partner qualifies as a cohabitee, then the Representative is not bound to inform them. Moreover, it’s crucial to be aware of their rights under the Act. Ultimately, understanding these nuances is vital to ensuring proper legal adherence.
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 +353 (0)1 234 3732, Email us at info@jrplunkett.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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