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Challenging a Will

There is a common public perception that the content of a will is open to challenge after a testator (the person who has made the will) passes away.

In fact the circumstances by which the content of a will can be challenged in this country are quite limited. It may be possible to challenge the validity of a will on the basis that it has not been executed in accordance with the requirements of the Succession Act 1965.

For instance a will that is not witnessed by two people cannot be validly probated.

Similarly a will could be challenged on the grounds that the testator was subjected to undue influence at the time the will was executed and this meant that the will did not give effect to their true testamentary intention.

Provided that there is no suggestion of impropriety and the will has been validly executed then the only person entitled to bring an action to set aside the provisions of a will is a child of the testator.

Section 117 of the Succession Act 1965 provides that if on application to it a court is of the opinion that the testator has failed in his moral duty to make proper provision for a child then the court may order that such provision shall be made for the child as the court thinks just.

There is a very strict time limit within which such a case can be pursued and it must be brought within 6 months of the grant of probate issuing in the estate. These actions can only be pursued in an instance where the person who is deceased has actually made a will. No cause of action arises where the deceased person died intestate.

The 6 month period is absolute and can not be extended. For instance the period cannot be enlarged irrespective of whether the child is a minor or labouring under a disability.

Over the years the courts have clarified the factors to which they will have regard in determining the entitlement of a child of a testator. In particular the courts look at the following:-

1.The amount the estate received by a surviving spouse.
2.The number of children of the testator as well as their age and position in life.
3.The financial means of the person who is deceased.
4.The financial position of the person bringing the application as well as their age and their life prospects.
5.Whether the person who is deceased has already made proper provision for their child during their life time.

It is also clear from the case of McDonald v Norris that the court will take into account the conduct of the child towards their parent during the life time of their parent.

The courts have placed the onus on the child to prove that there has been a failure in the moral duty of the testator. Similarly the child must show that there is a need arising in their case which could have been satisfied by a different apportionment of the estate pursuant to the will.

In the case of a surviving spouse they are entitled to a legal right share in the estate irrespective of what is provided for in the will. This share is either one third or one half depending on whether there are children of the relationship. There is an obligation on the person charged with administering the estate to advise surviving spouses of their entitlement to elect either what is left to them under the will or their legal right share. Somewhat unfairly there is no such legislative obligation on a personal representative to advise a child of their entitlement to bring an action under Section 117 in instances where they have not been provided for in the will or they have received an insignificant bequest.

Accordingly it is crucial that children that are not properly provided for in a will take immediate legal advice in relation to possible remedies pursuant to Section 117.

For further information on any aspect of your will, please contact Malcomson Law by calling 01 8744422 or by filling out an Online Enquiry Form.

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