How to Challenge a Will in Ireland (Part 1)

There are many ways a Will can be challenged in Ireland.  Any person who claims to have an interest in an estate can challenge a Will.

1Execution of a Will

If a Will is not signed in accordance with the provisions of section 78 of the Succession Act 1965, it may be successfully challenged. It is essential for a Will to be in writing signed by the testator (the deceased person who made the Will) at the end of the Will and witnessed by two people present at the same time and in the presence of the testator. If a Will does not bear the foregoing three signatures, it is not a valid Will. In this instance, a court application will not be required. If, however the Will appears validly executed on its face but external evidence would indicate that it was not executed correctly (if for example one of the witnesses did not sign the Will in the presence of the Testator), a court application and subsequent court order may be required to conclusively decide on the matter and to protect the personal representative.

2Lack of testamentary capacity

A Will can be challenged if it is claimed that the testator did not have the capacity to make the Will and did not understand the meaning of what he was doing. It is possible to lose capacity at any age due to an acquired brain injury or later in life due to the onset of dementia or Alzheimer’s disease. In order to challenge a Will under this heading it is essential to prove that the testator lacked sufficient capacity to make a valid Will. There must be medical evidence that not only confirms the presence of a mental illness but that the illness or condition prevented the testator from knowing what they were doing at the time the Will was executed and that they were not of sound disposing mind. 

The Courts apply the following test to ensure that the testator must:-

• Understand the nature of the act and its effect
• Understand the extent of the property of which he/she is disposing of and
• Be able to comprehend and appreciate the claims to which he or she ought to give effect

Where it is proved that the testator lacked the necessary testamentary capacity and was not of sound mind, the Will can be set aside and an earlier Will then becomes the Last Will and Testament.   If there is no earlier Will, the estate will be divided according to the rules of intestacy.

3Presumed Undue Influence

Presumed undue influence can arise where a relationship of trust and confidence existed between the deceased and the beneficiary.  Irish courts have not attempted to limit the types of relationships in which presumed undue influence can arise for policy reasons, but it tends to include professional relationships where one person was giving advice to the other such as those between solicitors and their clients and medical advisers and their patients. If a relationship of presumed undue influence existed between the testator and the beneficiary, a court will declare a gift to the particular beneficiary to be invalid.  Proof of coercion is not necessary to successfully ground a claim of presumed undue influence –  the existence of the relationship alone can be deemed sufficient to establish that the testator could not have had such independence of thought so as to freely include that beneficiary in his/her Will.

4Actual Undue Influence

If you suspect that a person actually exerted undue pressure on the testator to execute a Will that was for their benefit, the Will can be challenged under this heading also however, take note that actual undue influence can be very difficult to prove.   The burden of proof is on the claimant to prove that the testator was coerced into making a disposition in favour of a particular beneficiary.   Positive proof of coercion is required such that it overpowered the volition of the testator.  Proof of physical force is not necessary to show actual undue influence.  Factors that a court would take into consideration would be whether the testator was in a vulnerable position being frail or in ill health and was dependent on the person at the time the Will was made.  The amendment of a previous Will to include a person that had not previously been named as a beneficiary may lead to suspicions being raised however this does not affect the requirement to prove coercion affected the testator’s decision making capacity.

How to Challenge a Will in Ireland (Part 2)