Probate Litigation

Probate Litigation

Contesting a Will

Where there is a will there are relatives and where there are relatives there are disputes


Probate Litigation

It is a sad fact of life that inheritances generate disputes which sometimes lead to litigation.

Probate litigation in particular tends to be long running, expensive and bitter. It is important to obtain proper expert legal advice at the earliest opportunity. Proceedings under Section 117 of the Succession Act must be issued within 6 months of the date of probating the will.

We at Griffin Solicitors offer an initial consultation service in order to inform clients of their options. Contact John Griffin at (01) 4907651 and email your factual situation to [email protected] in order to obtain top class legal advice.

The principal grounds for challenging a will are:

Lack of Testamentary Capacity: the person who made the will (testator) did not have sufficient mental understanding to make the will.

Failure to make proper provision: the testator failed to make proper provision for his/her child as a just and prudent parent would have done. This application is normally made under Section 117 of Succession Act 1965.

Undue Influence: The circumstances of the making of the will are such that the person inheriting has an actual or presumed undue influence over the testator such that the will was not fairly made and should therefore be set aside.

Case Example 1 S.117 Application
We at Griffin Solicitors recently probated or proved the will of a single man who lived and died in Dublin. He decided to leave his house to his nephew and the remainder of his estate to his four brothers and sisters. The deceased was the natural father of a son who was born and raised in England and was totally left out of the will. The son issued proceedings against the estate claiming 80% of the entire estate as the deceased’s only child. Eventually the case was settled on the basis that the nephew gave up his right to the house; the son received 60% of the net estate and the nephew and the four siblings shared the remaining 40% of the estate.

Whilst a child has no automatic right to succeed a set percentage of his parent’s estate he can apply to Court if there has been a moral failure by the parent to make a just and proven provision for child. See Section 117 Succession Act 1965.

Case Example 2 Lack of Testamentary Capacity
A widower who had 9 children left three-quarters of his estate to 3 children with the remaining one quarter left to the other six children. The six children contested the will on the basis that the man lacked sufficient mental capacity to make the will, having been unwell and in hospital at the time it was made. In the Circuit Court the will was struck down because the Court found, based on medical evidence, that the man lacked sufficient mental capacity to make the will. The estate was then administered under the laws of intestacy and divided in 9 equal ways.
Case Example 3 S.117 Application
A widow made a will leaving her only asset, a house, to the eldest son and nothing to the younger son. The younger son who was effectively disinherited took proceedings on the basis that his mother had failed in her moral obligation to him to make just and prudent provision for him and applied to Court to have the will set aside. The Court examined the facts of the case and in particular the relative positions in life of the two sons. The son who was left the house was married, in a full time pensionable job and relatively well off. The other son, who was disinherited, was single, unemployed and suffered some psychiatric problems as a result of his upbringing. The Court set aside the will and the estate was divided equally between the two sons.

John Griffin

John Griffin

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