The circumstances by which the content of a Will can be challenged in Ireland are quite limited and the ground rules for doing so are set out in the Succession Act (1965).
It may be possible to challenge the validity of the Will on a number of grounds the most fundamental of which are that (a) the Will was not witnessed by two people, (b) the person making the Will was subjected to undue influence at the time of making the Will whereby their true intentions are not reflected in the Will or (c) mental incapacity.
Provided that there is no suggestion of impropriety and the Will has been validly executed the only person entitled to bring an action to set aside the provisions of a Will is a child of the testator providing that the child’s parent ie the surviving spouse is not the sole beneficiary. Section 117 of the Succession Act provides that a child may make an application to the Court to vary the terms of his/her late parents Will on the grounds that the parent has failed in his/her moral duty to make proper provision for such a child. If a son or daughter challenges a Will on the grounds that they feel hard done by the Court will take the following matters into account:
- The value of the Estate
- The amount received by the surviving spouse
- How the son/daughter bringing the action benefited from the Deceased during his/her lifetime
- The current financial circumstances and prospects of that son/daughter
- How other siblings benefited from the estate during their lifetime
- The current financial circumstances and prospects of other siblings
- The financial means of the person who is Deceased
- The conduct of that child towards the Deceased during their lifetime
The onus will be on the child to prove to the Court that the parent failed in their moral duty to make adequate provision for them.
An action to challenge a Will must be taken within six months of Probate being granted and there are no exceptions to this rule.
If you have any queries on succession/inheritance matters please consult O’Hara Solicitors, Cross Street, Athenry, Co. Galway, telephone number 081-844045.
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