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.
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