WILLS

WILLS

Contesting a Will

If you are unhappy with either the execution or the contents of a Will, you need to act by issuing legal proceedings in the High Court.

Just because you are unhappy with the contents of a Will does not necessarily give you grounds to contest it.

Grounds for Contesting a Will

·    The Will is invalid.

·    The testator (person making the Will) was under the influence of another person at the time of making the Will

·    Proper provision has not been made in the will in the case of a child or dependent of the testator.

·    Prior agreements have not been met.

What is an Invalid Will?

·    A Will not in written form

·    Testator has not signed the written Will

·    Will not witnessed.

·    Testator was not of sound mind when making the Will.

·    Witnesses (two) did not sign in the presence of the testator at the time the will was executed by the testator.

·    Witnesses must be over the age of 18.

·    Witnesses must not stand to benefit from the Will. This will not nullify the will but will nullify any bequests to the witnesses.

What is Meant by "Not of Sound Mind"?

The testator must have known and understood what he/she was doing. The High Court has a test to determine this which is:

·    The testator must have understood the extent of their property /assets.

·    Understand the nature of the Will.

·    Take into consideration the mental capacity of the testator at the time the Will was made.

·       Cohabiting partners may also make a claim for financial provision. This is permitted if you were in a relationship with the deceased and you lived together for five years, or for two years if you had a child together.

·       If a spouse, child, or cohabiting partner is not properly provided for under the terms of the Will, a legal claim can be issued by such dependant.

This is of particular importance with the rise in elderly people suffering from dementia.

There have been cases where the court has found that the testator was ‘encouraged’ or influenced by a party who stood to benefit from the Will.

Wills in Ireland are governed by the Succession Act, 1965 and, under it, the Act provides that proper provision in a Will must be made for the spouse or children of the testator.

 Time Limits for Contesting a Will

·       For spouses: six years from the date of death/end of right to election period

·       For children: six months from the date the Grant of Probate is issued.

·       For cohabitees:  six months from the date the Grant of Probate is issued.

Contesting a Will is a complex matter, with substantial costs and an uncertain outcome, so do not attempt to do it yourself, speak to your solicitor and use his/ her professional expertise.