Contesting a Will

CONTESTING A WILL -Dublin City Centre Probate Solicitors

You cannot simply contest a Will on the ground that you are unhappy with its provisions. However, the following is some information on the various circumstance in which a person or persons may contest a Will:

Undue Influence

Where a person has made there Will in circumstances where they have been unduly influenced by another person, a challenge may be made to the Will. It should be remembered that each case is different and will have to be examined by the court.

Lack of Capacity

A person making a Will must have the mental capacity to do so. In circumstance where a person has made a Will but lacked the mental capacity to do so their Will may be put aside if a successful challenge is made to the courts in this regard. Where a Will is validly signed and executed the court will presume that the Will was made by a person that had the mental capacity to make a Will and the burden of proving the opposite will be on the person or persons challenging the Will.

The Court will consider each case on its own merits. These cases will require expert witnesses to give evidence with regard to the testator's mental capacity to make the Will when it was made.

Where a Parent Fails in their Moral Duty towards a Child

Where a parent dies testate (with a Will) and leaves nothing to a child or a bequest to a child that such child considers inadequate the Court may be asked by that child to deem that in the circumstances the parent has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his Will or otherwise under Section 117 of the Succession Act.

Such application has to be made within one year of the date of death of the testator after which the child is precluded from taking such an action. If successful, the court will order that proper provision will be made for that child out of the assets of the estate.

The court will determine how much the child should receive if successful, on a case by case basis. It is important to remember that the age of the child is completely irrelevant in relation to these types of application. Therefore if for example a child is 60 years old and his or her parent has failed in the moral duty towards that child, he or she is still entitled to make such an application to the Court.

Estoppel

In certain other cases a person may be able to establish that although not named in the Will he or she was encouraged by the Testator to believe that he or she would receive some benefit under the Will in question. Such a person will have to show that in reliance on such promise he or she altered his or her position in some way.

Overview

The above is only an example of some of the ways in which a Will may be contested; but is by no means conclusive. If you have any concerns regarding the validity of a gift or gifts provided for in a Will or with regard to a Will in its entirety then why not contact us today to talk to a Solicitor practising in this area of Law, either via phone on telephone number 01-679 3539 or via email at info@pposullivan.ie