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Proving Entitlement on Intestacy

Proving Entitlement To Extract A Grant Of Letters Of Administration (Where There Is No Will) In Unusual Cases

In intestate situations, usually the surviving spouse or a child wishes to extract a grant of letters of administration (the “grant”) in his/her name to administer the estate.  However, in order to do so, s/he will need to prove their entitlement to inherit to the Probate Office1.

In many cases, proving entitlement to extract a grant is straightforward: the deceased lived in Ireland all his/her life and the deceased’s relationship to his/ her ‘next of kin’ can be traced through marriage and/or birth certificates. However, in cases where a surviving spouse wishes to extract the grant, and the deceased obtained a foreign divorce of a prior marriage additional steps will be required to enable the grant to issue. Similarly, if a surviving child wishes to extract a grant but the deceased, being a father was not named as such on that child’s birth certificate, a court order declaring that child as the deceased’s natural parent will be required before the grant will issue in the child’s name. The article below sets out the steps to be taken to extract a grant in these two unusual cases where a deceased did not make a Will.

Surviving Spouse wishes to Extract a Grant but the Deceased was Divorced in a Foreign Country

The recognition of a foreign divorce in Ireland2 is an extremely complex area. In most situations, a court order declaring the foreign divorce as valid in Ireland is required. However, the Probate Office has issued a policy, whereby it will in limited circumstances in ease of time and expense, forgo the need for a court order. In order to comply with the criteria, set out in the policy, the foreign divorced spouse will need to sign a Deed of Renunciation and potentially, another document called a Deed of Disclaimer. If the foreign divorced spouse cannot be contacted or will not execute the relevant deed/s a court application under Section 27(4) of the Succession Act 1965 will be required.

Surviving Natural Child wishes to Extract a Grant but the Deceased is not Named as father on the child’s Birth Certificate

As set out above, in this situation, the Probate Rules office will require a declaration of parentage3 first being obtained from the Circuit Court confirming that child is the natural child of the deceased. Unfortunately, the Probate Office has not issued a policy which would circumvent the need for a court order in certain cases. Whilst DNA evidence is not absolutely required to establish parentage it is recommended in all cases where it is available without exhuming the deceased’s body, which it is recognised would be hugely distressing for any family member. If DNA evidence is not available, a child should consider whether the presumption under section 46 of the Status of Children Act 1987, that a child born to a married mother is the child of her husband4, could be relied upon in his/her application. It is worth noting however that this presumption does not apply if the child was born more than 10 months from the date the mother separated from her husband.

Perhaps logically, a way of avoiding the need to engage in the above potentially protracted additional steps, is for the surviving spouse or natural child, as the case may be, to renounce his/her right to extract a grant in favour of someone who may not come within the unusual situations described above. There are however many valid reasons why s/he would not do so.

For specific tailored advice and assistance in relation to any aspect of the above please contact Deirdre Farrell, solicitor and AITI Chartered Tax Adviser by email or your usual contact at Amorys Solicitors.

1 The order of priority of those entitled to extract a grant of letters of administration is set out in Order 79, Rule 5 of the Rules of the Superior Court
2 To be recognised as valid in Ireland a foreign divorce must comply with the criteria set out in section 5 of the Domicile and Recognition of Foreign Divorces Act 1986.  Note, section 5 will be amended by s. 5 of the Family Law Act 2019 (re UK and Gibraltar) when that section comes into force which is expected to be when the transition period for UK leaving the EU takes place.
3 Under order 79, rule (5) (1) (e) of the Rules of the Superior Courts
4 Section 46 of the Status of Children Act 1947 (as amended)

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Irish Inheritance Tax – Which Assets Are Taxed?

Irish Inheritance Tax – Which Assets Are Taxed?

With the increased globalisation of the world economy, the death of individuals leaving assets in more than one country, each with different inheritance tax regimes has become commonplace. Sometimes two countries will be considered to have taxing rights over estate assets under each of their own domestic tax rules.  This article outlines the circumstances in which a deceased person’s assets will be considered as coming within the charge to Irish Inheritance Tax, before consideration of any relief from double taxation or exemption which might be available.

In Ireland, inherited property is taxed at 33% over and above a beneficiary’s unused tax-free group threshold amount in the hands of the beneficiary (if no relief or exemption applies) and the payment date depends on the valuation date.

Inherited property will come within the charge to Irish Inheritance Tax if:-

  1. The property (both moveable such as funds in a bank account or immovable such as land or buildings within the State) is located in Ireland1; OR
    1. Subject to the exception outlined at below, the deceased was resident in Ireland during any of the three years prior to his/her death2. If this is the case, inherited property located worldwide is subject to Irish Inheritance Tax;
    2. however, if the deceased was (1) not domiciled in Ireland at the date of death and (2) not tax resident in Ireland for five consecutive tax years immediately prior to the date of death, only inherited property located in Ireland will come within the charge to Irish Inheritance Tax3; OR
    1. If the person inheriting the assets was tax-resident in Ireland for any of the three years prior to the date of inheritance4;
    2. however, similarly to the exception at no.3. above, if the beneficiary is (1) not domiciled in Ireland at the date of the inheritance and (2) not tax resident in Ireland for five years preceding the date of death, only inherited property located in Ireland will come within the charge to Irish Inheritance Tax5.
1 See section 11(2) (c) of the Capital Acquisitions Tax Act 2003
2 See section 11(2)(a) of the Capital Acquisitions Tax Act, 2003
3 See section 11(4) of the Capital Acquisitions Tax Act, 2003
4 See section 11(2)(b) of the Capital Acquisitions Tax Act, 2003
5 See section 11 (4) of the Capital Acquisitions Tax Act, 2003

Usually a personal representative will be aware from historic tax returns made available to him/her whether or not a deceased was tax resident in Ireland in the years prior to his/her death.

In situations where both Ireland and another country have taxing rights over the same property and foreign tax arises, a personal representative may be required to obtain a Letter of Residence from the Revenue Commissioners in Ireland which would assist the estate in making a claim for double taxation relief/ refund of Inheritance Tax charged by that second country (for example, in France or Spain where tax is charged on estate assets) or vice versa. If required in Ireland the Letter of Residence will issue in a standard format and will confirm the position regarding the deceased’s tax residence from the Irish Revenue’s point of view.  The Revenue has issued helpful guidelines on how to apply for such a letter and these are available at this link.

As set out above, if on the basis of the above 3 rules, inherited property does come within the charge to Irish Inheritance Tax, the provisions of the Ireland/ US or Ireland/UK double taxation treaty or a beneficiary’s unused tax-free group threshold amount or other inheritance tax reliefs may serve to reduce the liability in full or in part.

For specific tailored advice regarding the content of this article please contact the writer, Deirdre Farrell, Partner, by email at or your usual contact at Amorys.

Please note whilst every effort has been made to ensure the accuracy of the within article it is not considered to be taxation advice. Specific tailored advice is required in every situation.

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Initial Steps To Take After Someone Dies

Coping with the death of a close family member or friend is understandably difficult and, at a time of loss, there are a number of practicalities that need to be dealt with more quickly than others. The initial steps that should be taken immediately after someone dies are:

1Register the Death and obtain the Death Certificate

To register a death in Ireland, one must submit a completed Death Notification Form to a branch of the Civil Registration Service. Part 1 of the Death Notification Form will be provided to a family member or friend by the hospital or the doctor who attended to the deceased during their final stages of their life.

The next of kin will complete part 2 of the Death Notification Form and this must be signed in the presence of a registrar. The death should be registered as soon as possible and no later than 3 months from the date of death. When the death is registered you can then apply for a copy of the death certificate which costs €40 per copy from

Due to the current Covid-19 restrictions, the registering of a death is slightly different, you can see the temporary procedure here.

2The Deceased’s Will

It is important to locate the deceased’s last original Will at an early stage so that appropriate funeral arrangements can be made and beneficiaries are aware of specific clauses which might take effect from the date of death for tax purposes. It is generally not advisable to disclose the contents of a Will (other than specific clauses naming specific beneficiaries) until the Will has been admitted to Probate.

Unlike most other European countries there is no central wills register in Ireland. A friend or family member in search of a deceased’s Will, will usually need to make enquiries with local solicitors and if circumstances require, publish notices in local newspapers and the Law Society gazettes. Most solicitors advise clients who make a Will to leave the original with their firm for safe keeping and to notify those named as executors where it is. However, some clients prefer to take the original will with them. It is therefore also important to search the deceased’s house or any other place s/he is likely to have kept the Will and to make enquiries with people whom the deceased is likely to have appointed executors.

If there is no valid Will or the deceased died without making a will this is known as dying “intestate”.

3Plan the Funeral

Whilst any family member may take on the role of organising a funeral, the ultimate duty falls on the legal personal representative which may be an executor named in the Will or the deceased’s next of kin if there is no Will. If a Will was executed, the deceased may have specified the funeral arrangements in that document. However, the provisions of a Will in this regard impose a moral duty on a personal representative only, and not a legal one.  Therefore, whilst disputes regarding funeral arrangements are hugely distressing for those involved, recourse to the Courts is not considered available.

Due to prevailing public health issues  there are a number of restrictions with regards to planning a funeral which are available to view here. These limitations are expected to lift soon.

4Notify the Executors

If the Deceased made a Will, in most cases, s/he will have named executors to administer the estate. If there is no will or no named executors an administrator can be appointed, which is usually the deceased’s next of kin.

The executor can then choose whether or not to appoint a solicitor. This decision is usually based on the size and complexity of the estate.

What next?

5Ascertain Assets and Liabilities of the Estate (including taxes)

The next step is for the executor to ascertain all the assets and liabilities of the estate both in Ireland and elsewhere. This includes all property, bank accounts and expenses such as credit card payments, funeral expenses etc.  If the deceased held property outside of Ireland, it is important to know the tax implications of the death in each country and if/when inheritance tax needs to be paid at an early stage.

6Notify Government Departments and Pension Service Providers

It is important to notify Government Departments and Pension Service Providers of the death as soon as possible.

7Apply for the Grant of Probate

The next step is to apply for a Grant of Representation, a Grant of Representation is a Court-issued document which gives authority to the executor/s or administrator/s to administer an estate in Ireland. An application for the Grant of Representation includes submitting a number of documents to the Probate Office. A Grant of Representation is not required in an estate where all of the assets and property within the estate are in joint names. A Grant of Representation is also not required if the deceased’s estate comprised solely of cash of less than €25,000.

8Administer the Estate

Once the Grant of Probate is received the estate can then be administered.

At Amorys Solicitors, we can assist you with either applying for a Grant of Representation (including a Grant of Probate), or administering an estate after someone dies. We tailor the work according to your needs to ensure that the process is completed as smoothly as possible.

For tailored guidance on what to do when someone dies please contact Deirdre Farrell, Partner on +353 (0)1 213 5940 or or your usual contact at Amorys.

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Valuing Property For Probate

Valuing Property For Probate in Ireland

In most cases, a legal personal representative (LPR) will be required to value estate property on two occasions: 1) the date of death and 2) the date of grant of representation (GOR). During uncertain economic times when property values can fluctuate, a valuer will often provide a range within which a property is valued and an LPR will be faced with choosing a valuation on the higher or lower end. Below are two considerations for LPRs when confronted with this decision in respect of a dwellinghouse or a commercial property.

1Future Sale of the Property – Capital Gains Tax (CGT)

To sell real property in Ireland, an LPR will need an Irish GOR – usually, where there is a Will the GOR takes the form of a Grant of Probate. Even in the most straight-forward of cases, a GOR can take more than 12 months from the date of death to issue.

An LPR will be subject to Irish capital gains tax (“CGT”) (33% as of May 2020) on the uplift in value and as a result an LPR should choose a date of death valuation that ensures CGT is charged on the genuine rise in value on a sale. Frequently, where an LPR or intended beneficiary/ies are intent on selling the property, and ultimately do sell it, a valuation at the higher end of the date of death valuation proves to be the most appropriate.

If a sale of property is likely to occur quite quickly following a death then an LPR could consider delaying the application for a GOR until a sale price has been agreed so that an accurate valuation of the property at the date of death is ascertained.

CGT/ CAT set-off rarely available

For a beneficiary to qualify for a set-off of CGT paid, both CAT and CGT will need to arise ‘on the same event on the same property’1 and the property inherited must be a physical asset such as land, buildings or stocks, for example: most inheritances are excluded as a result because CGT arises on a sale and the asset to be inherited is cash. In addition, in order to avoid a clawback of the relief, the beneficiary/ies will need to retain the asset for at least 2 years from the date of inheritance. Further detail on when a CGT set-off is available is explained on the helpful Revenue Guidelines here.

An LPR must therefore take care in valuing estate property on the date of death to ensure it is not an artificially low valuation that gives rise to an unusually high CGT liability which results in an ‘sunken cost’ to the estate.

1 See section 104 of the Capital Acquisitions Tax Consolidation Act 2003

2No Sale of the Property

If an LPR does not intend on selling the property, in many instances a CGT liability is unlikely to arise. This is because a transfer of property from an estate to those entitled is not considered a disposal for CGT purposes2. There are many different situations in which a property will not be sold: for example, the asset may need to be transferred into a fixed or discretionary Will trust; or the beneficiaries intend on holding the property as an investment. In this situation, an LPR’s attention will usually focus on the value of the property as of the GOR, which usually determines the date on which benefits are to be valued for inheritance tax purposes – also called the ‘valuation date’. The valuation date will determine the date on which a beneficiary’s capital acquisitions tax return must be filed and inheritance tax paid. As a result, an LPR may well be justified in choosing a valuation on the lower end of a range. However, this area is not as simple as it seems. A beneficiary who ultimately intends to sell the property inherited (say, in 3 years’ time) will be subject to capital gains tax on the difference between the sale price and the GOR value and may well consider opting for a value which ensures maximised use of an unused group threshold amount or inheritance tax relief.

In a fluctuating property market, an LPR may need to procure a number of valuations, in consultation with beneficiaries if possible, to ensure an accurate market value for the property as of the valuation date is obtained.

2 S. 573 (5) of the Taxes Consolidation Act 1997


In summary, an LPT must consider the potential negative tax implications for an estate of choosing an artificially low or high valuation of estate property, particularly during uncertain economic times.

If you would like any further information in relation to Valuing Property For Probate in Ireland or have any queries with regard to Wills, Probate & Trusts then contact Deirdre at or call us on +353 (0)1 213 5940.
Please note whilst every effort has been made to ensure the accuracy of the within an article, it is not to be construed as legal or taxation advice nor does it purport to be so. Specific tailored advice is encouraged for every personal representative and beneficiary.

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5 Ways to Reduce An Inheritance Tax Bill in Ireland

In Ireland, inheritance tax is charged on estate assets payable by beneficiaries of an estate.
Below are five of the most frequently availed-of reliefs to reduce an inheritance tax liability:-

1Dwelling House Exemption

By far the most frequently availed-of relief by beneficiaries is the Dwelling House Exemption (DHE). If the criteria for DHE is met, a beneficiary will inherit the relevant property tax-free. There is no limit on the value of the property on which relief may be claimed and so this is potentially a very valuable relief. The qualifying criteria for the DHE are set out below.

  1. The dwelling must have been the sole or main residence of the disponer;
  2. The beneficiary must have been resident in the property for at least 3 years prior to the disponer’s death;
  3. The beneficiary must not own an interest in any other property including another property inherited from the same estate to qualify for this relief; and
  4. The beneficiary must occupy the property as his sole or main residence for six years after the deemed inheritance (usually the date of death or grant of probate).

Of interest to non-resident beneficiaries, this relief applies whether or not the dwelling house is located in Ireland or abroad – see the final page of Revenue guidance notes here.

In order for the DHE to apply a claim in that regard must be made by filing an inheritance tax return. A personal representative is required to ensure a non-resident beneficiary files an Irish inheritance tax return claiming DHE before formally transferring the foreign dwelling to him/her.

We would refer you to the very helpful information on this relief on the Revenue website available at this link.

2Business Property Relief

A beneficiary who inherits an interest in a business may qualify for Business Property Relief (BPR).  This relief operates to reduce the taxable value of an inheritance by 90% and if it applies, will either reduce tax liability substantially or reduce it to NIL, after taking one’s unused tax-free group threshold amount into account.  Like with DHE, conditions apply to this relief.  Property inherited must consist of assets capable of being operated as a business: the inheritance of a commercial building without the business operated from it, for example, might not come within the definition of ‘relevant business property’ under the legislation1 and the position will need to be examined further with reference to the facts – please see Revenue Guidance Notes on this relief here.

Importantly, businesses which deal completely or mainly in land and buildings, currencies, securities, or stocks will not qualify as ‘relevant business property’ under the terms of the legislation.

However, of interest to beneficiaries cross-border estates, the relevant business does not need to have a presence in Ireland: a business operating in another jurisdiction would qualify as relevant business property under the legislation. This was confirmed in the detailed Revenue Guidance notes on the BPR available here.

1 S. 90 – 102A of the Capital Acquisitions Tax Act, 2003 (as amended up to Finance Act 2019)

3Agricultural Relief

An inheritance of ‘agricultural property’2 (which includes houses and farm buildings on land) may qualify for agricultural relief. This relief reduces the taxable value of the property, including land, by 90%. The qualifying criteria are quite strict and as a result, unless the property acquired is farmed for commercial gain for 6 years after the deemed inheritance, the relief will not apply. However, according to data collected by the World Bank, the Republic of Ireland consisted of 65% of agricultural land in 2016 and as a result, this relief is no doubt of relevance to a considerable number of beneficiaries. Agricultural property located in the European Union qualifies for relief under the relevant legislation.

For further detail in relation to this relief, we would refer you to the dedicated section of the Revenue website here.

2 S. 89 Capital Acquisitions Tax Consolidation Act 2003, as amended by Finance Acts up to 2014

4Favourite Nephew Relief

Favourite nephew relief allows a nephew or niece to be treated as a disponer’s ‘child’ when s/he receives an inheritance of relevant business property3.  Where the relief applies, a niece or nephew may use the Group A tax-free threshold (€335,000 as of May 2020) instead of the group B threshold (€32,500 as of May 2020).  The relief only applies to business assets (eg. licenced premises, stock in trade, or shares in a private company owning same) and the niece or nephew must have worked substantially on a full-time basis in the business for five years prior to the inheritance.

In circumstances where non-resident beneficiaries meet all relevant criteria, they are capable of claiming this relief.  For further information in relation to this relief, we would refer you to the helpful Revenue page at this link.

3 S. 93 Capital Acquisitions Tax Consolidation Act 2003

5Double Taxation Relief

If you inherit a property from someone who died leaving assets in both Ireland and another country it is quite possible that tax will apply in both jurisdictions on the same event (ie by reason of death).  In Ireland, there are two ways in which one may claim a credit for double taxation.

  • Relief under a Double Taxation Treaty – UK or United States

Despite the many countries with which Ireland has negotiated double tax treaties, it is only those with the UK and the US which deal with inheritance tax and both provide the same relief.  Very broadly, Ireland will give a credit for tax paid on UK property. Further detail on the operation of the UK/Ireland DTA is available here.

Relief under the Irish – US double tax treaty is less simple.  Broadly, Ireland will give a credit for US inheritance tax applied on foreign property.  However, Ireland may only impose inheritance tax on foreign property (which is also subject to US inheritance tax) where the deceased person died domiciled in Ireland and was not a US resident.  Further detail about the operation of this relief is available here.

In a majority of cases, due to the relevant payment dates, UK and US inheritance tax is paid in advance of Irish inheritance tax becoming payable by the beneficiaries.  Beneficiaries must still be aware that UK/US tax must actually be paid in order to claim a credit in Ireland.

A claim for double taxation relief can be made at the same time as filing an online IT38/ Inheritance tax form in Ireland.  Beneficiaries will need to make sure that the UK/ US tax has been paid prior to claiming relief.

  • Unilateral Relief – all other countries

For all other countries exercising taxing rights on inherited property, Ireland will offer a credit for tax paid on foreign situated property.  For further detail on the operation of Unilateral Relief, we would encourage you to visit the helpful information on the Revenue website here.

Non-resident personal representatives are required to instruct a solicitor in Ireland to ensure that non-resident beneficiaries pay correctly charged Irish inheritance tax due.  An experienced solicitor in probate & tax can assist a personal representative in identifying reliefs which may be availed of by these beneficiaries at an early stage thus giving as much advanced warning as possible of the tax that needs to be paid and the financial arrangements that need to be put in place by the tax due date.

If you have been named as executor of a Will yet to be admitted to probate or are the next of kin of someone who died without a Will and would like a quote for a solicitor to administer the estate please contact or your usual contact at Amorys.

Please note whilst every effort has been made to ensure the accuracy of the within an article, it is not to be construed as legal or taxation advice nor does it purport to be so. Specific advice in each situation is required.

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How to Challenge a Will in Ireland (Part 2)

In our previous article, we have discussed ways how a Will can be challenged in Ireland. Any person who claims to have an interest in an estate can challenge a Will.
Just in case you missed an article “How to Challenge a Will in Ireland (Part 1)”, please click the link below.

5Parties not provided for under a Will

Children & ‘Section 117 claims’

Children who believe that they have not been properly provided for in their parent’s Will may have a right to challenge it under section 117 of the Succession Act 1965 provides that where a child of the deceased person can show that the deceased person, in their Will, has failed in his or her moral duty to make proper provision for that child, in accordance with their means, then the Court may order such provision be made as the Court thinks fit. However, a child has no automatic right to a share in the parent’s estate where there is a Will and Section 117 does not apply in cases of intestacy (where there is no Will). It is important also to note that an award under section 117 shall not interfere with the legal right share of a surviving spouse (see below) and that this can affect the value of the claim considerably.

There is a strict 6-month time limit from the date of the Grant of Probate or the issue of a Grant of Representation in the estate of the deceased to make a claim under Section 117. It is therefore vital to get legal advice at an early stage. A personal representative of an estate is under no obligation to inform any child of the provisions of section 117.

When deciding to make an award under this section, a court will take the following into consideration:-

  • The number of children of the deceased, their age and position in life at the date of the testator’s death
  • The applicant child’s age, position in life, financial means and what was left to the applicant in the Will
  • The means of the testator
  • Whether the testator had made proper provision for the applicant during their lifetime


Claiming the Legal Right Share

A surviving spouse is entitled to a legal right share of the deceased’s estate as long as they have not previously renounced their rights to the estate. A spouse’s legal right share is either:-

  • one half of the estate if there are no children; or
  • one-third of the estate if there are children

A surviving spouse can elect to either take the bequest under the Will, if there is one, in addition to any share s/he might take from a partial intestate estate or take his/her legal right share. If nothing is left to the spouse in the Will, the legal right share automatically vests in the surviving spouse in which case same is treated as a debt due from the estate ranking in priority to all other devises and bequests in the Will and no court application is required. In the latter situation, the legal right share has the potential to be extremely disruptive to the provisions of the Will. A court application is not required for a surviving spouse to elect to claim his/her legal right share.

Claims by Separated or Divorced Spouses

Notwithstanding the terms of a Will, divorced spouses may apply for provision out of a deceased spouse’s estate under section 18 of the Family Law (Divorce) Act 1996 on the grounds that the terms of the decree of divorce can be interpreted to mean that ‘proper provision’ for the surviving spouse in the circumstances was not made during the deceased spouse’s lifetime. A claim under this section must be made within 6 months of the date of issue of the grant of representation and a court application is required. The onus lies on the surviving spouse (and not the personal representative) to inform him/herself of the provisions of this section and to make the appropriate application. An identical application may be made by a judicially separated spouse under section 25 of the Family Law Act 1995. In many cases, an ancillary order extinguishing both spouses’ right to apply under this section is made by a court when an order for divorce or judicial separation is granted. The ancillary order in the context of a divorce is commonly called a ‘section 18 barring order’. Surviving spouses are advised to obtain independent legal advice on the terms of their divorce or judicial separation for this reason.


– the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (the “2010 Act”) introduced a redress scheme for qualifying cohabiting couples who are not married to each other or are not civil partners. To be considered a qualified cohabitant you must have been cohabiting for a period of at least five years or for two years if there are children of the relationship. A Court may, upon an application being made to it under section 194 of the 2010 Act, make such order out of the deceased cohabitant’s estate as is just and equitable in the circumstances.

A qualified cohabitant has a right to apply for provision from the net estate of a deceased qualified cohabitant under section 194 of the 2010 Act. In this respect, where the ending of the relationship arises on the death of the qualified cohabitant, the surviving cohabiting partner does not need to prove financial or economic dependence on the deceased in order to substantiate a his/her claim. However, the reverse is the case in circumstances where the relationship ended prior to the death. In either situation the right of the qualified cohabitant under this section cannot exceed that which s/he would have been entitled to if the parties were married. In general terms, this could mean that the surviving cohabitant would not be entitled to anything more than his/her ‘legal right share’ as referred to above.

It must be noted that the right to be provided for out of a deceased qualified cohabitant’s estate under section 194 of the 2010 Act is strictly subject to a surviving spouse’s succession rights under the Succession Act 1965 which in small estates, could render any such right in favour of a qualified cohabitant valueless in practical terms. A surviving spouse could be first entitled to a legal right share (if the parties are not yet divorced) out of the net estate or could have a general right for proper provision to be made for him/ her under section 18 of the Family Law (Divorce) Act 1996 (as explained above). In addition, it is noteworthy that a court is required to consider the rights of other beneficiaries and the rights of a dependent child/ children prior to making an order under section 194.

An application for provision out of the deceased’s estate under section 194 of the 2010 Act must be made within six months of the date of a grant of representation in the estate. A personal representative is not required to notify a surviving cohabitant of a potential claim under the 2010 Act. There is a positive duty on the surviving cohabitant to notify the personal representative of the proceedings and failure to do so could mean that the deceased’s assets would be distributed to the beneficiaries without notice to the surviving cohabitant.

6Failure of a benefit under a Will

It is possible to challenge part only of a Will such as a legacy or a devise of real property. For example, gifts to attesting witnesses to a Will and their spouses will be invalid pursuant to section 82 of the Succession Act 1965. In this instance, a court application may not be required.

Costs of contesting a Will are usually paid out of the estate as long as the proceedings challenging the Will are considered reasonable by the court. However, if a claim challenging a Will is found by a court to be frivolous or vexatious, the claimant can be made liable to pay the costs themselves. There is also a requirement to consider mediation before issuing proceedings for costs purposes. It is therefore vital to seek independent legal advice before challenging a Will.

If you would like any further information in relation to Challenging a Will in Ireland or have any queries with regard to Wills, Probate & Trusts then contact us at or call us on +353 (0)1 213 5940

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