Including those made by a child, spouse or cohabiting partner
We are experienced in acting for clients in contentious probate issues, often resulting in probate litigation. Wills are challenged for many reasons, however some of the most common grounds include:
- Lack of testamentary capacity. At the time of making the will, the deceased did not have the mental capacity needed to do so.
- Lack of valid execution. The will does not meet the necessary formalities. For example, the will is not signed or witnessed correctly.
- Undue influence or duress. The deceased was put under pressure to make or change a will.
- Fraud or forgery. A signature on the will was faked or unauthorised changes were made to the will.
- Rectification and construction. The will ambiguous, unclear or does not carry out a person’s intentions or wishes.
- Failure to make proper provision for family members such as children, a spouse or a cohabiting partner. In Ireland the Succession Act 1965 puts certain limitations on who property can be left to and in what amount or share. Where the relevant provisions are not complied with, a challenge may be brought by the relevant person. See below for further information in this regard.
Claims made by a child (s117 claim)
Children of a deceased parent who has not made any or made little provision for their child/children in accordance with their means, may make an application to the Court for proper provision under section 117 of the Succession Act 1965. Claims under this section can be made irrespective of whether the deceased left a will or died intestate.
A section 117 claim may arise in circumstances where, for example, a child is cut out of the will following a family argument and their share is given to another family member. Sometimes, s117 claims may also involve an element of reliance by a child on certain promises or assurances made by the parent.
Please note that there are strict time limits in relation to claims under section 117 and it is therefore essential that you get in touch with us immediately should you feel that you may have a case.
Claims made by a spouse
Under section 111A of the Succession Act 1965, the spouse or civil partner of a deceased person is entitled to one third of their deceased partner’s estate (the “legal right share”) where the deceased left a will. There may be situations where the deceased may wish to disinherit their spouse or civil partner. Unless the effected spouse or civil partner renounces their right to their share, the entitlement to it vests in them automatically.
Making a claim to a legal right share is subject to the Statue of Limitations. If you feel that you have a case, it is essential that you contact us to prevent your claim becoming statute barred.
Claims made by a cohabiting partner
With the coming into force of the Civil Partnership & Certain Rights and Obligations of Co-Habitants Act 2010, cohabiting partners are now entitled under s194 of the Act to apply to Court for provision to be made for them from their deceased partner’s estate. Prior to 2010, cohabitants had no legal entitlement to share in their partner’s estate. In order to qualify for an application under section 194, the relevant cohabitant had to be living with the deceased for a minimum of two years where they have one or more dependent children together or a minimum of five years in any other case.
Please note that there are strict time limits in relation to claims under section 194 and it is therefore essential that you get in touch with us immediately should you feel that you may have a case.