In this my final article in my series on Wills, I am looking at the main grounds for challenging a will. They are as follows:-

1. Succession Act requirements:

The Act sets out a number of formalities for the making and signing of a will. For example the will has to be signed by the person making the will in the presence of two independent witnesses. If these are not met the will can be challenged.

2. Capacity:

Did the person who is making the will have full mental capacity to sign the will or were they suffering from any illness or condition which meant they were not “of sound disposing mind”? If the person who has made the will is deemed not to have been of sound disposing mind at the time of making the will then the will can be challenged.

3. Contents of Will:

Did the person making the will approve of it’s contents? If not the will can be challenged.

4. Undue Influence

Was there any duress or undue influence? The person making their will should be free to dispose of their assets as they wish. They should not be under pressure from any third party to dispose of any asset in any particular way. A Will may be challenged if there is a suspicion of duress or undue influence.

5. Children:

There is no automatic right for a child to benefit under their parent’s estate but they do have a right to apply to Court for provision out of their parent’s estate. They will succeed if they can prove that their parent failed in their moral duty to make proper provision for them in accordance with their means whether by will or otherwise. Children have 6 months from the date of the Grant of Probate to take an action to the Court.

6. Spouse

Spouses/Civil Partners/Co-Habitants: Can all bring an application to Court for provision to be made for them. This is knows as the “legal right share”. If there are no children the entitlement is one half. With children the entitlement is one third.

7. Fraud:

If the execution of the will was obtained by fraud the will may be challenged.

It is important to obtain proper legal and tax advice in relation to your estate planning. However it is very important to have a valid will in place for the reasons I have outlined in this and my previous Articles.

Niall Colgan is a solicitor with over 10 years experience practising in Cork City.

Tags: changing will, last will, will

Jun 24, 13