THE LAST WORD – WHEN CAN YOU CHALLENGE A WILL?
A Will is a written declaration of a person’s wishes providing for distribution of their property after their death. It allows for an individual to provide for the needs of family members, minor children and friends. Anybody over 18 can make a Will provided they are of sound disposing mind. There are a number of requirements for a valid will which your solicitor can advise you on. It is important to note that an individual can change his will at any time but can also sell any of the property mentioned in the Will without having to alter it.
If a person dies without making a will, they are deemed to die intestate (without having made a valid will) and their estate is divided according to the laws of intestacy. Where the deceased is married with children his estate is divided as to 2/3 to his surviving spouse and 1/3 to his children. If he does not have any children his spouse receives the entire estate. If he is single his parents inherit his estate and if they predeceased him his siblings are next in line. The Succession Act 1965 deals with any further order of entitlement in an intestate estate.
Your Will is an individual document and will be drafted on the basis of your instructions, however you should be aware of the circumstances where a Will can be challenged in order to avoid a successful challenge to your Will.
A child is not entitled as of right to any part of their parents Estate. Section 117 of the Succession Act 1965 however provides a form of protection where a child has a right to make an application to the court if they wish to obtain part of the Estate. There is a high onus of proof on the child and the application is known as a Section 117 application. The court will consider the matter from the point of view of a prudent and just parent and will take into account the position of each of the children and any other circumstances which the court considers to be of assistance in arriving at a decision that is as fair as possible to the child and to the other children. Where the child can show that their deceased parent has failed in their moral duty to make proper provision for the child, in accordance with their needs, then the court may order such provision as the court deems fit.
Any previous gifts or inheritances made by the deceased parent or other parent to the child will be taken into consideration by the court.
The time limit within which a Section 117 application is made is very important as a child only has six months from when the Grant of Probate issues and after this time the child loses their right to make a claim.
The costs of a Section 117 application are at the discretion of the court.
Any order made on foot of a Section 117 application cannot affect the legal right share of a surviving spouse.
Legal Right Share
This does not strictly come within the remit of challenging a will but is included here as the legal right of the surviving spouse does restrict a person’s ability to leave their assets to whom they wish. If the deceased dies with a will and leaves a spouse and no children then the surviving spouse has a right to one half of the Estate. If the deceased dies with a will and leaves a spouse and children, the surviving spouse has a right to one third of the Estate. Therefore the value of the legal right of a spouse depends on whether there are children or not. (This legal right share only applies where the deceased has made a will and should not be confused with the right of a spouse where the deceased has not made a will).
Certain properties are excluded from the legal right share such as some trust property and joint property.
The legal right of a spouse can be renounced in writing by an anti-nuptial contract or during marriage however this document will be carefully scrutinised to ascertain if the parties have met on equal terms, whether independent legal advice was sought and also the possibility of undue influence.
It is the duty of the Executor to notify the spouse in writing of their legal right share and the spouse has a certain time limit within which to accept same.
A Will can be successfully challenged where it is proved that the person making their Will was subjected to undue influence. Where a person is subject to undue influence, it will result in the making a Will which does not accurately reflect their wishes.
Where a Will is formally valid there is a presumption of testamentary capacity unless the contrary is shown. This complex area was reviewed with The Assisted Decision-Making (Capacity) Act which was passed in December 2015. The Act reforms the current law and will assess capacity on an issue- and time-specific basis. Where it is found by a court that the person making the Will did not have testamentary capacity, the Will can be set aside.
There is case law in this area, where a person, often a family member takes over the day to day running of the farm for their elderly relative on the understanding that they would in due course be left the farm in the deceased’s Will. If you have not been provided for in a Will, in circumstances where you were either promised a share in the deceased’s Estate or a particular asset such as a farm or where you have contributed to the maintenance and upkeep of the farm based on that promise, you should seek legal advice to ascertain your rights.