A will is a document which, customarily, is written down by the testator (the person designing the way in which his or her inheritance will be shared amongst the members of the family) in order to legally stipulate the manner in which the material and financial assets will be inherited by the family, local community or others.
Due to various reasons, members of the family, or other persons who can be legally entitled to the inheritance, can contest the will if they consider they haven’t received a proper share of the inheritance or if they are not mentioned in the document. There are a number of reasons on which a will can be contested and our team of Irish solicitors can provide you with an in-depth presentation on this matter.
Wills legislation in Ireland
A will can be contested in Ireland only after the testator passed away. The Irish legislation stipulates several legal situations in which persons are allowed to contest the validity of the document. The legal grounds are stipulated under the Succession Act 1965.
A will is considered valid under the Irish legislation if the testator comprises the following three conditions:
- the testator is above 18 years old;
- the testator has full mental capacity;
- the testator has not been influenced or forced by third parties to write down a stipulation which is not in accordance with the testator’s wish; our team of Irish lawyers can provide more details in this sense.
Our team can help those interested draw up a will in Ireland that complies with these requirements. A valid will, one that is executed in accordance with the rules in force will have lower chances of being contested using motives such as improper execution or witnessing.
Grounds on which a will can be contested in Ireland
In the situation in which a person considers that he or she should contest the will, the action can be performed in accordance with the above mentioned stipulations. As such, a will can be contested if the testator has an age below the legal requirement or if he did not have full mental capacity.
The stipulations of the document can be challenged if another person can demonstrate that the testator was forced to write a specific provision against his wish.
Another way in which the will can be contested is related to a provision of the Succession Act, which specifies the amount of inheritance entitled for family members. If the spouse or the children of the testator consider they have inherited less than were supposed to, they can address to a court, which, under the Section 117 of the Act, will act on the behalf of the family members to modify the stipulations of the will.
Below, our lawyers list the main grounds under which a will in Ireland may be contested:
- Invalidity: the will, when not drawn up properly, can be contested on grounds of invalidity (for example, it is not signed by the testator in the presence of two independent witnesses);
- Proper financial provision: when, as listed above, the testator does not leave his assets in the proper amount as per the estate law;
- Influence: when there is reason to believe that the testator was influenced to name a certain beneficiary in the will; in this case, the testator is considered to have been put under undue influence;
- Prior agreements: when the will does not acknowledge the prior agreements; in this case, contesting a will in court may determine the judge to decide on the enforcement of the prior arrangement, either wholly or in part.
Contesting a will in Ireland is possible on these four main grounds, however, it is different from case to case. The particular family relationships and the extent of the disagreements are important when determining the right course of action. In some cases, our lawyers may recommend an initial negotiation or mediation period for the purpose of settling the issue. If you do have the grounds to contest a will, this may be a solution to avoid having to take the case to court.
In some cases, the issues surrounding a will may be plain, such as the fact that it has not been drawn up in the presence of two impartial witnesses or that the testator did not sign the document. However, most cases are of a more complex nature, especially when the one contesting the will suggests that the testator did not have the mental capacity to sign the document willfully. In some situations, the witnesses’ testimonies may be relevant, especially if the case goes to court.
The Succession Act 1965 provides a number of time limits to bringing claims against a will in Ireland. It is useful to remember these, as they are different for various categories of interested parties:
- 6 years: from the date of death for the spouse claiming a legal share of the assets;
- 6 months: from the date the Grant of Probate is issued for children who claim proper financial provision (also applicable in some cases to cohabitees; our lawyers can provide more details);
- 2 years: from the date of death for proprietary estoppel claims, those that concern a prior arrangement that has not been fulfilled in the will;
- others: other time limits may apply; this is why it is advisable to seek legal assistance as early as possible.
Lodging a caveat is a key step for contesting a will in Ireland. This will prevent the issue of the Grant, thus allowing a party to administer the estate. In some cases, as seen above for children, the claim can only be lodged after this is issued. Our lawyers in Ireland can help those interested lodge a claim against a will with the High Court.
Our team works in accordance with the Law Society in Ireland, the main regulatory body for solicitors and will handle any wills and probate issue, including the challenging of a will, in accordance with the laws in force.
How to make a will in Ireland
The will is always a written document, and it can be drafted by the individual himself and have checked by a solicitor, or it can be drafted by a lawyer in Ireland from the very beginning, a step that is recommended and during which our team of lawyers in Ireland can fully assist.
Making a will in Ireland is not done by following a particular template or form, however, mandatory information needs to be included in the document. Understandably so, it will include the name and the address of the individual, a statement that revokes all other, earlier documents of this sort, as well as an appointed executor. Most importantly, the will shall stipulate the manner in which the assets will be distributed.
It is important to note that the will is dated and signed by the witnesses, along with the testator himself. Only in this manner is it attested (this is the attestation clause).
Changing certain clauses after making a will in Ireland is possible, and this is done as a note or memorandum. We can refer to the additional changes to the will as to a type of annex, that will also be signed by both the testator and the witnesses, making the subsequent additions part of the first document and granting these full legal capacity.
If you are unsure of how to make a will in Ireland, or, more specifically, if to include specific indications for all assets, you can use a residuary clause. Essentially, this will be used as a general rule for any remaining property t hat is not specifically dealt with. When any part of the estate becomes residue, you can choose to stipulate that this particular part of the estate will be left to a certain natural or legal person.
An important issue to consider when making a will is the fact that your spouse, civil partner or child has a legal right to part of your assets, as provided by law. This does not mean that you are not allowed to stipulate how your assets are distributed after you pass away, it does however mean that you should carefully consider if you choose to intentionally give away possessions during your lifetime that may have been inherited by your family. In practice, if a court discovers that you have done so with the unfair intention of reducing the assets that would have been inherited by law by your spouse/civil partner or child, then the individual who received the inheritance might have to pay back the assets that were received in this manner. It is not always common for individuals to willfully give away possessions in order to prevent their family members to inherit these, however, if you have questions about this, you can always reach out to our team of lawyers in Ireland and find out how to make a will in Ireland that cannot be questioned in this manner in court.
Additional information about drawing up a will
Individuals who own property in more than one country can be advised to draw up more than one will, namely to draw up a will in each of the countries in which they own property, in order to avoid any issues that may arise as a result of any conflicts in succession law.
EU Regulation 650/2012 is helpful in this sense, as it applies to all EU member states (excluding Denmark). This means that when an Irish national has property based in two or more EU states he can indicate the law that he or she wishes to apply on the said property when making a will in Ireland. In practice, this means that if an individual owns property both in Ireland and in Spain, for example, he or she can indicate in the will that he/she wishes for the applicable law to be the Irish law, the law of his/he nationality. If you are in this situation and need more information about how to include property located abroad in your will, our team of lawyers can help you.
When deciding how to make a will in Ireland, a key element is not to act under undue influence. This refers to the fact that the individual should always act of one’s own accord, and not as a result of being pressured by another individual or individuals, perhaps family members. When this happens, it can be a common clause for contesting a will, based on the fact that the testator acted under duress and the document does not, in fact, reflect the testator’s true wishes.
Discussing the manner in which you will draw up your will should be done in person, only with your lawyer. All your meetings with your lawyer for the purpose of drawing up the will are confidential, and you do not need to have another (interested) party present during the draw up of the document. The witnesses will be present only when you conclude the document.
Making a will in Ireland, helped by our lawyers
Making a will is preferable, not only for making sure that all or part of the assets are distributed as per one’s wishes, but also because the process of estate administration and distribution can be more complex (and costly) when the person has died without making a will (in practice this is called “intestate”).
An important issue to take into consideration when drawing up a will, or as the one who will inherit assets under such a document, is the capital acquisitions tax – a tax implemented on benefits in the forms of gifts or inheritances.
An individual who receives an inheritance under a will in Ireland will be included in one of the three group thresholds for taxation purposes. Group A is the largest one, the one reserved for children, for example, and it is also the largest threshold under which the individual can inherit significant amounts that are free of tax. Group B includes parents, brothers and sisters, grandchildren, nephews and nieces and group C includes any other individuals (it is the smallest threshold of the three).
Challenging will in Ireland is not as common as most of these documents are not disputed, however, if there are inconsistencies or disputes on the manner in which the wishes are expressed in the will, or if there is string reason to believe that the document is not legally valid, then this is commonly settled in court.
Persons who need to receive more information on the ways in which a will can be contested in Ireland can address to our Irish law firm for legal representation.
If you need assistance in other Family Law matters, please do not hesitate to contact us. Our solicitors have experience in many different areas of interest to individuals living in the country and we also assist those who are looking to get a divorce in Ireland. Professional legal representation is helpful in these cases, especially for making the needed arrangements with the former spouse.