In a previous blog, we looked at why a will is so important. Once you have decided to make a will, the next important step is to make one that is workable in its administration. A good will should make things easier for those left behind, not subject them to lengthy legal struggles. However, contested wills remain a feature of the Irish legal life. Here, we look at the steps that you can take to avoid this issue.
A common legal phrase is that a will speaks from death. Clarifying a point of contention from beyond the grave is obviously impossible and so your will and if necessary supporting documents must be as self-explanatory as possible.
A good solicitor will always endeavour to foresee and head off any potential difficulties arising out of a will when drafting. However, contest over who is truly entitled to what remains common in Irish law.
Podcast: Why A Will Might Be Challenged
Who contests a will?
The personal representative of the deceased is charged with administering the estate. The personal representative is either the person nominated by the deceased to do the job or a close family relative if no such nomination took place.
If a person takes issue with how the personal representative is administering the will, they can bring the matter before the courts.
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 allow 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.
Video: Wills, Estates & Enduring Power of Attorney
Interesting recent cases of contested wills
Mullen Junior v Mullen (2016) IECA 107
This case concerned the interpretation of a will of a deceased grandmother whose will spread her assets across a number of beneficiaries. One such beneficiary was her grandson who she bequeathed a plot of land “not more than half an acre to make up the site of his proposed new house should he require same.”
When all was said and done, the parties contesting the will had gone from the High Court to the Court of Appeal debating the meaning of
“should he require”. The costs undoubtedly outweighed the value of one half acre of land.
Interestingly, the court were influenced by the background information to decide the matter and held for the grandson who was allowed to keep the half acre. The fact that the deceased had encouraged the grandson during her lifetime to use the land to create a garden and consented to his use of it for a playground for his own children were all deemed relevant factors.
This case concerned a diplomat who had made a will in March 2013 which included leaving his house to his partner, Mr Laasers.
However, after a deterioration in his health and two days prior to his eventual passing, the deceased drafted a new will (revoking the previous will) which divided this asset between his partner and siblings.
This new will was contested and the court ultimately ruled that when a person was, as they put it “obviously so enfeebled and immediately close to death” as the deceased was at the time of the second will, that affirmative medical evidence is required to show that the deceased had at that time the capacity to make the will.
Essentially, the court was saying that for a will that is made by a person in such an enfeebled state to stand up, medical evidence must be produced to state that the person was of sound mind, able to understand the nature and detail of what they were doing.
As no such evidence existed in this case, the second will was held to have never been properly drafted and so the original March will was used to administer the estate.
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I am considering my uncle’s will. He was a priest and left all to his nieces and nephews in an inequitable fashion. Will the legal costs be taken from the estate ?
Yes,usually the case.
Further to the above. If the legal of defending a contest or bringing a challenge are taken from the estate presumably only the balance will be subject to capital acquisitions tax?
A a general rule, the gift is liable to tax – which is calculated from the net estate.
if a deceased Widow (who has 3 adult children all living outside the family home) leaves the family home divided as follows: 1/2 to one child and the other two 1/4 to the other two children… can the children who only received 1/4 have valid grounds to contest in that it was not equally divided?
Hard to give a definitive answer without more information and history . The most that can be said is the the fact that there was an uneven split does not necessarily mean that a dispute would succeed. If, however, there are elements of undue influence or duress , there may be a basis to contest a will.
Is it illegal for anyone to as a person to write a note saying that the a deceased person was not of sound mind to contest a will. Also the same is it illegal for the same person to ask someone to write a letter saying they paid for alot of the deceased things knowing this ain’t true all to contest a will.
If that ‘nayone’ is an executor to an estate, they are in breach of their duty as Executor and could find themselves liable to beneficiaries.
Hi there. I was thrown out of my parents house in the mid 90s as I am gay, I was a very difficult teenager with a few issues and my elderly parents didn’t really know what to do with me! My father died in 2000 and my mum and him had made a Will before he died, leaving a farm and the family home to family home to my only brother (i only have one sibling) . Since then my relationship with my mother has become extremely friendly and we get on great and talk all the time , but she doesn’t want to change the will she made with my father. The estate is valued at just around €1m, what rights do I have? As a point of note, my brother lives 2 minutes from my mother, and does not in any way help her and I live over an hour away.
Hi John. Thanks for your message. Under Irish law you cannot compel someone to change their will. The only way of contesting it unfortunately is in the event of your mother dying. We would be happy to discuss this with you if you wanted to contact our office directly.
Hi John,
our mum has made her will leaving the familly home to be divided equally between 3 siblings. She made her will about 8 years ago and has become quite ill in the last 4 years needing a lot of care. Myself and my brother have been sharing the care for the last few years with the help of outside carers as mum wanted to remain in her home. Recently our sister has returned from living in Australia with her family and moved into the family home. She has mentioned that they might try to buy the house when the time comes but they may not be able to come up with the money. In this case could they claim some right to live there if it has become their family home or could they challange the will if they say they gave up their life in Oz to come home and look after mum? should we get something legally drawn up to prevent this?
The easiest answer is that it is always better to have an agreement in place to cover the situation. I would comment that moving into your mother’s home as such does not create ownership rights.
My two siblings never contributed anything materily or other wise to my younger who died suddenly and left them a third equal share in his estate he was devoted to his mother all his life and the will was made on her demise
If there is no will, the law determines how the estate is divided – contribution is irrelevant.
Hi my wife was promised two and a half acres by her father on his passing she was left €3,000 her siblings were left all the land and stock but refuse to give her field the solicitor who is in charge of will encouraged them to settle but refuse and now want a meeting with barrister in four courts what can she expect in mediation
I offer an opinion only – Mediation is possibly a better forum to explire solutions that might keep the possibility of future relationships intact.
Hi.
My last parent died last year leaving a large farm to my sibling and zero to me. I was abused and neglected as a child, could I claim my inheritance on the grounds of not being properly cared for?
Under S.117 of the Succession Act there is a mechanism to challenge a will. This is based on the case that the parent did not properly provide for the child.