Challenging a Will

Losing a loved one is hard enough, but it can be particularly stressful when a Will reveals unexpected results. It is imperative in these situations that you are aware of your rights and the time limits that are in place for taking certain actions.

A Will and the contents of a Will can be challenged for a number of reasons.

The following are the most common grounds supporting applications contesting a Will:

1. Validity of a Will
2. Proceedings to construe a will- where part of the Will is unclear
3. Duress or Undue Influence
4. Expectation
5. Section 117 application: where a child has not been properly provided for in a Will
6. Proceedings to defeat the legal right share of a Spouse.
7. Recovering Assets

It may be possible to challenge a Will on the basis that the Will is not a valid Will and that it does not comply with the specific legal requirements as set out in the Succession Act, 1965. If you challenge a Will and are successful, the Will may be deemed ‘void’ either in part or in its entirety.  If a Will is void in its entirety, the Court will distribute the estate as if the Will never existed. The estate will then be distributed according to the Rules of Intestacy.

The validity of a Will can be challenged on a number of grounds:

Lack of due execution of a Will

There are certain criteria that must be followed for a Will to be valid, such as a Will must be in writing and signed by the testator in the presence of two witnesses, who must also sign the Will in the presence of the testator. This highlights the importance of making sure that your own Will is drafted correctly.

Lack of testamentary capacity when making a Will

For a Will to be valid, the person making the Will must be of sound disposing mind, that is to say, they must have the necessary ‘testamentary capacity‘ to make a legally binding and valid Will. Where a person is not of “sound mind” or where they lacked testamentary capacity, the Will can be set aside and any earlier Will made becomes the Last Will and Testament. Where there is no earlier Will, the estate is divided according to the Rules of Intestacy.

When litigation arises that challenges a person’s testamentary capacity, it is usually on the basis that the person suffered from a mental illness such as dementia or was under the influence of a substance at the time the Will was made. To emphasise the point the important date here is the capacity of the person on the date they signed the Will not before they died. But it is important to note that simply because an individual has a form of mental illness or disease does not mean that he or she lacks the testamentary capacity to make a Will.

Legal Test of Capacity

To have the testamentary capacity to make a Will, the person making the Will must have had an understanding of the following:

• what he or she owns;
• who he or she is expected to provide for; and
• that they are making their Will and the effect of a Will.

Medical Test of Capacity

The lack of ‘testamentary capacity’ is typically proven by:

• reference to medical records;
• the conduct of the person at the time of making their Will;
• the testimony of those who observed the person at the time the Last Will and Testament was executed;
• the testimony of persons that are well acquainted with the deceased; and finally,
• the testimony of the solicitor who prepared and supervised the signing of the Will.

Case: The capacity to make a valid Will was contested in the English case of Pharmaceuticals mogul Branislav Kostic, who died in 2005. He wrote his Will in the 1980s leaving his £10m estate to the Conservative Party, and in so doing excluded his only son from benefiting  from his estate. His son contested the bequest in the Will and the matter reached the English High Court where it was argued that the father was “deluded and insane” at the material time. The High Court determined that the delusions which Mr Kostic suffered as a result of mental illness had influenced the decisions he had made about his Will and accordingly the Court found in favour of the son.

Undue Influence: A Will may be invalidated because there was undue influence exerted on the person making the Will. For further information see below.

Fraud/Forgery: A Will can be invalidated where it is established that a Will was forged such as where another person (other than the person making the Will) signed the Will . Also, the situation can arise where the person making the Will was misled at the time of making their Will such as where the person was told that they were signing something other than a Will.

This can arise where the terms of the will are unclear or there is uncertainty as to who benefits under the Will.

In general, where this happens the personal representative would seek direction from the Court as to the meaning of the term and this would involve bringing the matter before the Court.

Wills are seen by the Courts as the voice of the person from death setting how they wish their estate to be distributed. The person making the Will should be able to make decisions about how to distribute their assets freely. They should not be under pressure or the influence of any third party to make provision for that person.

Duress: involves a threat of physical harm or coercion practised upon the person to cause them to sign a Will.

Undue Influence: a Will may be invalidated because there was undue influence exerted on the person making the Will. An allegation of undue influence involves a person being coerced into making the Will. No physical force is necessary to prove undue influence. It can be very hard to prove however since the person who made the Will cannot give evidence directly, it is often found that there is little hard evidence!

If you have relied on a promise made to you that you will gain a particular asset upon the death of that person and the person then makes a Will effectively breaking the promise, you may challenge this through the Courts. This principle is known as ‘proprietary estoppel’.

The best way to show this principle in operation is to give examples of recent case law.

Case : On the 18^th September 2012 the High Court ruled that a 57-year-old man is entitled to a 120-acre farm of a deceased farm owner who turned out to be the applicant’s biological father. The applicant, Mr William Naylor, claimed that he was promised the farm which belonged to the late Mr Michael Hoare and with which the applicant had lived and worked on for more than 30 years, with little remuneration. A Will executed by Mr Hoare in 2005 left the lands to Mr Naylor but a later Will executed some months before his death in 2007 bequeathed the farm to his daughter and Mr Naylor’s sister, Jean Maher, who had cared for the late Mr Hoare in the few years prior to his death. Mr Naylor argued that he had been promised the farm by Mr Hoare, who he only discovered was his biological father after his death.

In his judgment, Mr Justice O’Keeffe said Mr Naylor had left school at a very early age before moving to Dublin to work in various jobs. He returned to work on the farm at the express wishes of Mr Hoare. The Judge, on hearing the evidence, was satisfied that Mr Hoare promised Mr Naylor on a number of occasions that he would leave him the farm and took the view that the commitment by Mr Hoare to Mr Naylor was “life-long”. It was noted that Mr Naylor had received little money for his work on the farm and had worked the lands to his detriment. Mr Justice O’Keeffe ruled that Mr Naylor had established a legal claim and was entitled to the lands.

Case: Suggitt v Suggitt & Anor , here a son worked for his father for a number of years on his father’s farm and was not paid a wage.  According to the son, this was on the understanding that ultimately upon the death of his father he would receive the farm. The father executed his Will in 1997 and passed away in 2009.  In his Will he bequeathed the entirety of his estate to his daughter Caroline, one of his four children.  The farmland comprised of 400 acres. The son brought a claim based upon proprietary estoppel for relief. The Judge ordered that the son John should get the farmland and one of the farm houses and that the remainder of the estate went to the sister Caroline.

Section 117 of the Succession Act 1965, provides that where a child of the deceased person can show that the deceased person, in their Will, has failed in his or her moral duty to make proper provision for that child, in accordance with their means, then the Court may order such provision be made as the Court thinks fit. Each case will depend on its own circumstances.

It is important to note however that there is no automatic entitlement of children to a share of their parent’s estate, where there is a Will. It is something that must be proven.

Case law over the years in this area has set out what the courts take into account when making a decision:

• The applicant childs age and position in life, financial means and what was left to the child under the will.
• The number of children of the deceased, their age and position in life.
• Questions concerning health, finances and disability of the applicant child or other children are taken into account .
• Whether the child or other children received previous gifts from the deceased

Where a spouse has been left the entire estate under the Will, it is important to note that the Courts will not interfere in the spouse’s rights. Therefore, no application can be made by martial children but it is important to note that this is not the case for non-martial children, who can make a claim.

Section 117 applies only where a person has made a Will so as a consequence it does not arise in cases of intestacy (i.e. where no Will exists). Applications under this section can be made by or on behalf of a child of the deceased person. Please note that this does not include grandchildren.

In relation to the costs of a Section 117 claim, it is important to know that the legislation sets out that this is at the discretion of the Court. In Section 117 applications, in general, and provided the child has a stateable case, the costs of the applicant child are generally paid for out of the deceased’s estate. Please note this is not provided for in legislation and at all times the issue of costs is to a matter for the Court to decide.

Note: there is no obligation on the executor of an estate to notify the child of their right to bring a Section 117 claim.

If you have made a Will and are survived by your spouse, then your spouse is entitled to what is called a “legal right share” of your estate (provided they have not renounced their rights to your estate).

In simple terms a surviving spouses legal right share is:

• One-half of your entire estate if you do not have children
• One-third of your entire estate if you do have children

Your spouse can choose to take either the bequest specified under the Will or his/her legal right share. Therefore, if you do not leave anything to your spouse in your Will your spouse can elect to take their legal right share of your estate.

In the event of a martial breakdown, a situation can arise where a spouse might be guilty of what is referred to in law as desertion. A spouse is guilty of desertion if absent from the family home for a period of two years or more continuing at the date of death of the deceased. The view is that the estranged spouse is considered for all intent and purposes as unworthy to receive their share of the estate or their legal right share.

Where property or other assets such as shares, bank accounts, etc., have been transferred during the lifetime of the deceased person for the purpose of disinheriting a spouse and/or a child, the Court may takes into account transfers made three years prior to a person’s death. The Court must be satisfied that the disposal was made for the purpose of diminishing the share that a person’s wife/child would be entitled too. There are strict time limits.

A person can distribute their estate as they choose in their Will, but sometimes provisions in the Will can be disputed after death in a process known as challenging or contesting a Will.

If you are concerned as to your proper entitlement under a Will or would like specific advice in relation to any matter, including defending such a claim in your capacity as executor of a Will, please Contact Us to arrange an immediate appointment.