What are the main reasons to challenge a Will?
- The validity/the construction of the Will.
- Lack of testamentary capacity.
- Undue influence.
- The Will does not provide for a spouse/civil partner/co-habitee in accordance with the Succession Act 1965.
- The Will does not provide for a child in accordance with the Succession Act 1965.
Challenging the validity of the Will
In some circumstances, it may be possible to challenge a Will on the basis that the Will is not a valid Will and does not therefore comply with the legal requirements set out in the Succession Act 1965. The requirements for a valid Will are set out under this Act and make clear that for a Will to be valid it must be in writing, it must be signed at the foot or end by the testator, in the presence of two witnesses who must be present at the same time and who must sign their names as witnesses in the presence of the testator. Witnesses to a Will cannot be named beneficiaries or spouses of the beneficiaries otherwise the request in the Will to that individual will be deemed invalid. Most Wills are not disputed or challenged. However, if there is a dispute with the wishes expressed in a Will or whether the Will is legally valid, it must be settled in Court. For this reason, it is very important that your Will should be legally valid and as clear as possible.
Lack of testamentary capacity
Under Irish Law a “testator” (the person making the Will) must have the capacity to make a Will. The Succession Act 1965 states that in order to make a Will, the testator must be of “sound disposing mind”. In most circumstances solicitors are in a position and well able to establish whether their client, the testator, has the testamentary capacity and most Wills are made without an assessment of the testator’s mental capacity. However, in certain cases where there is doubt as regards the testator’s mental capacity, a doctor will be asked to conduct a formal assessment of the client’s testamentary capacity. They will be asked to provide a Certificate of Capacity prior to the execution of the Will.
The legal test of testamentary capacity was set out in a well-established case from 1870 Banks v Goodfellow, a case which has been approved in the Irish Courts. In that case it was set out that in order to have testamentary capacity, a testator must be capable of understanding (1) the nature of the act of making a Will and its effects (2) the extent of their assets and estate (3) the claims of those who might expect to benefit from his Will.
Undue influence
A Will may be invalidated because there was undue influence exerted on the person making the Will. Undue influence is where a testator may be put under fear, force or pressure into writing their Will in a certain way. Undue influence is more than just persuading someone to write their Will in a certain way. The influence must be coercive or intimidating. No physical force is necessary to prove undue influence. Cases alleging undue influence can be difficult to prove. Many factors will be examined in deciding whether undue influence was applied; whether the deceased was dependent on that person at the time the Will was made, whether the deceased was frail or ill and therefore in a more of a vulnerable position and whether the Will made amendments and now included the person who was not provided for in the earlier Wills. The burden of proving a claim of undue influence rests with the individual alleging the undue influence therefore they bear the burden of proof of showing that the testator was coerced into making a Will in favour of a particular beneficiary. There must be positive proof of coercion and the burden on the Claimant set out by the Court is high.
Section 111 Spouse/civil partner’s legal right to share
Where a testator has failed to provide adequately for their spouse/civil partner under their Will section 111 of the Succession Act 1965 affords protection to that spouse/civil partner in the form of the legal right share. Section 111 provides that where a testator leaves a spouse/civil partner and no children, the spouse is entitled as a right to one half of the estate.
Where a testator leaves a spouse/civil partner and children, the spouse/civil partner is entitled to one third of the estate. These provisions apply no matter what is indicated otherwise in the Will.
If the surviving spouse/civil partner is provided for in the Will, a right of election arises. This allows the spouse/civil partner to choose or elect to take either the benefit they were left in the Will, or their legal right share as set out in the Succession Act. This is known as the “Surviving Spouse’s Right of Election”. Section 56 of the Succession Act allows the surviving spouse/civil partner to take or otherwise known as “appropriate” the family home in which they were ordinarily resident at the time of the deceased’s death towards the satisfaction of their legal right share. A spouse/civil partner’s legal right share takes priority over the Will and the Will may accordingly be varied by it.
Estoppel
Where the person contesting the Will can show that they were led by the testator to believe and expect a benefit in the Will and that because of this assurance by the testator, they altered their position or acted to their own detriment. The doctrine of estoppel precludes a person from a certain something contrary to what was implied by their previous actions or statements. There are three elements to a claim of this:
- Assurance – this is a promise or a representation made by the testator to the Claimant.
- Reliance – the Claimant relied on the promise made by the testator.
- Detriment – the Claimant relied on the statement to his detriment and altered their position accordingly based on their reliance on this promise.
