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 & testament of a loved one, it can create huge 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?
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
i. Parent’s Will
ii. Married Parent dies without making a will
iii. Civil Partner dies without making a will
b. Spouse & Civil Partners
c. Co- Habits
Correcting the Last Will & Testament and Interpretation of Wills
In some cases, the last will & testament may be improperly drawn or important items have been left out, a Court judgment may be required regarding how the Will needs to be interpreted.
Administrators who think a challenge against the will is likely, need to look for professional legal guidance, as soon as possible.
Podcast: Why A Will May Be Challenged
John Lynch spoke to Fran Curry in 2016 about the reasons that might see a will being challenged. You can listen to a podcast of that below.
(This podcast was recorded in 2016)
Legal Challenges
Disputes over what a person is entitled to from a deceased’s estate are common and can range from disputes over the exact interpretation of a sentence in the will, to claims of a legitimate and genuine expectation to property that they may not otherwise be entitled to under the will or the rules of intestacy ( which is used to manage an estate where no will exists )
Obtaining a copy of a will
Once a grant of probate (or letters of administration) has been issued, anybody can apply for copies of the grant and the will using a PAS1 form which you can get from Citizens Information or the Courts Services website.
The grant sets out the name and address of the executor or administrator of the estate and the name of the solicitor acting on their behalf (if any). It also sets out the gross value and the net value of the estate.
Detailed information about the estate is not normally available to the general public, however, certain people may be able to inspect the Inland Revenue Affidavit. They include:
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A beneficiary who is named in the will
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Someone who is entitled to a share of the estate
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A child who is entitled to bring proceedings against the estate under Section 117 of the Succession Act 1965
Video: Contesting Wills
John Lynch looks at the issue of contesting wills in this video from June 2020.
Lynch Solicitors for Information Purposes Only
Who pays?
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 estate of the deceased if it is satisfied that there were reasonable grounds for starting proceedings and that they were conducted in a bona fide manner.
The problem here is that you might start off with an estate worth a lot of money but if you have to take out the costs of litigation, that sum is going to be a lot less and everyone might be the loser.
Contact Us
If you need more information on this issue, it is important that you consult us at an early stage so that we can deal with your case and provide you with detailed legal advice.
For further information contact us at Lynch Solicitors, at reception@lynchsolicitors.ie or telephone (052) 612 4344 or Freephone 1-800-750-850.
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The material contained in this article is provided for general information purposes only and does not amount to legal or other professional advice. While every care has been taken in the preparation of the information, we advise you to seek specific advice from us about any legal decision or course of action.
