Challenging a Will in Dublin
People can sometimes feel that they have been treated unfairly in a Will and they may decide they want to contest a Will.
You should first consider whether or not there are grounds to contest a Will. There are a few grounds for contesting a Will and they include the following:
- The Will is invalid
- The Will does not take into account previous arrangements
- The person who made the Will was put under undue influence when making the Will and did not sign it of their own free Will.
- Proper financial provision has not been made.
Invalid Will
For a Will to be valid there are certain criteria:
- It must be in writing
- It must be signed by the person who made the Will in front of two independent witnesses
- The person who made the Will must be over 18 and of sound mind. This means that they understand the effect of the Will they are making, understand the extent of their property.
- The witnesses themselves must be over 18 and must not stand to benefit from the Will.
The Will does not take into account previous arrangements
This may occur when the Will fails to acknowledge prior agreements or promises to someone’s detriment. An example may be where the deceased promised to leave a family farm to a favoured nephew. The nephew may then spend his life working on the family farm rather than pursuing other opportunities in life.
Then if the uncle changed his Will and left the farm to someone else. The nephew may then have a claim for what is called proprietary estoppel due to the fact that he relied on his uncle’s promise, ultimately to his detriment. In this type of scenario a court may decide to enforce the terms of the earlier promise to the nephew, in full or possibly in part.
Proper Financial Provision
When someone makes a Will, they can leave their assets to whoever they chose, subject to some limitations.
The Succession Act puts some obligations in terms of financial provision on married couples. The Act states that a spouse must be awarded half an estate if there are no children and one-third if there are children.
There is also a duty to provide proper financial provision for a child. The test a court uses is “has the deceased failed in his or her moral duty to make proper provision for the child in accordance with his means, whether by his or her Will or otherwise”.
Undue Influence
This can happen when someone has been bullied or deceived into making a Will or putting something in a Will or taking something out of a Will. Challenging a Will in these circumstances depends heavily on the facts.
Time limits when challenging a Will in Dublin
The time limits when challenging a Will are very strict. The amount of time depends on the type of claim:
- For a child claiming proper financial provision, called a Section 117 claim, they have six months from the date the Grant of Probate has issued.
- For a spouse claiming a legal share of an estate, they have six years from the date of death/end of right of the election period.
- For a cohabitee claiming proper financial provision, you have six months from the date the Grant of Probate issued
- For proprietary estoppel, you have two years from the date of death.