'I feel wronged by the will, can I challenge it?' - Expert guide to contesting a will in Ireland

The death of a loved one is a traumatic time. However, when someone feels they have been cheated of an inheritance in the last will and testament of a loved one, it can create colossal division and sow discord within the family. It can be an area laden with minefields. So, what is the best way to navigate such a sensitive area?

What is a Section 117 Application?

s.117 permits children to apply to the court for redress if they feel their deceased parent has not made proper provision for them in accordance with their means, whether by his will or during his lifetime.

The definition of a child includes adopted, non-marital and step-children. There is no age limit on a child that can apply, i.e. can be an adult child.

If the court accedes to such an application, it has absolute discretion to make such provision for the child, as it considers just and equitable.

The court shall consider the application from the point of view of a "prudent and just parent", taking into account the position of each of the children of the testator and any other circumstances which the court may consider of assistance in arriving at a decision that will be as fair as possible to the child to whom the application relates and to the other children.

Legal Challenge – Can I take a case?

There are a number of grounds on which you can contest a last will & testament legally.

Some of the common grounds for challenging a Will include:

1. Lack of Capacity

2. Undue Influence

3. Failure to provide for certain family members:

a. Children:

Parent's Will

Married Parent dies without making a will

Civil Partner dies without making a will

b. Spouse & Civil Partners

c. Co-Habitants

What factors will the court consider when assessing whether proper provision has been made for a child?

Factors which the court will consider in assessing whether the deceased parent at the date of death has failed in his moral duty to make proper provision for a child include considerations such as;

1. The amount left to the surviving spouse or the value of the legal right share, depending on which the spouse elects to take.

2. The number of children the deceased has, their ages and their positions in life at the time of the testator's death.

3. The means of the deceased.

4. The age, financial position and prospects in the life of the child whose position is being considered.

5. Whether the testator already made proper provision in his lifetime for the child.

6. Whether the child has a disability.

THINGS YOU NEED TO KNOW WHEN BRINGING A SECTION 117 APPLICATION 

The short time limit

The time limit imposed by s.117 is a rigorous one. Once six months have elapsed, there is an absolute bar to recovery.

Choosing the relevant date

Case law in this area has consistently concluded that the relevant date in deciding whether the testator has failed in his moral duty to make proper provision for his children is the date of the testator's death. 

Intestacy

A child cannot make an application if their deceased parent has not made a will as the law on intestacy and the estate distribution in accordance.

Where does legitimate expectation/promissory estoppel fit into succession?

A s.117 claim can be made as a stand-alone claim or taken with a claim for legitimate expectation. For legitimate expectations to arise, the relationship between the parties doesn't have to be a child/ parent relationship.

In the case of legitimate expectation, the deceased must have made a representation to another in respect of a specific property, that other must have relied on that representation to their detriment, and the deceased fails to fulfill that promise by gifting that property to another or by failing to make a will and, therefore, the rules of intestacy apply.

A typical example of this is whereby a family member has worked on a family farm or business, in the belief and based on representations made to them that the farm or business would be theirs on the death of the deceased. In relying on this representation it foregoes other business opportunities or job offers.

Another example of a legitimate expectation claim is when a family member or carer moves in to live with an elderly person and makes improvements to the property, believing that the dwelling will be left to them.

The doctrine of promissory estoppel prevents the person who has made the promise from acting on his leg rights to the extent that it would be unjust and inequitable. 

What is a Legal Right Share, and how does it affect your freedom to gift in a will?

If the person dies either wholly (leaving no will) or partially intestate (certain gifts in the will are not valid), leaving a spouse and no children, the surviving spouse is entitled to a legal right share of one-half of the estate.

If the person dies either wholly or partially intestate, leaving a spouse and children, the surviving spouse is entitled to a legal right share of one-third of the estate.

A spouse is entitled to make a gift to their spouse in a will, but it should be specified whether this devise will be in addition or satisfaction of the Legal Right Share (LRS). If not, the surviving spouse must choose or "elect" which gift to take under the will.

A personal representative must notify a surviving spouse of the right to choose. This right of election or right to choose is not exercisable after the expiration of six months from the receipt by the spouse of such notification or one year from the first taking out of representation of the deceased's estate, whichever is the latter.

Afterthought

Usually, in litigation, the costs of bringing the matter to court are borne by the parties and, most often, by the losing side alone.

However, when a will is contested, the court usually allows costs to be taken from the deceased's estate if it is satisfied that there were reasonable grounds for starting proceedings and that they were conducted in a bona fide manner.

The problem is that you might start with an estate worth money, but if you have to take out the costs of litigation, that sum will be much less, and everyone might be the loser.