Challenging a Will

The validity of a Will can be challenged on the basis that the person making it:

• failed to sign
• failed to have it witnessed properly
• didn’t know or approve its contents (they may not have truly understood its contents or effect)
• had some form of undue influence exercised over them (such that the Will didn't reflect their intentions or wishes)
• didn’t have the mental capacity to make a Will (usually due to a medical condition).

A will can be challenged by anyone who benefits under an earlier Will. If no earlier Will exists, any person who would benefit under the intestacy rules can bring a challenge.

A range of claims can be made to ‘contest a Will’. The full factual history needs to be understood before someone can be advised about the potential claims that they may be able to pursue.

For example, a claim can arise where:

• the deceased made promises that haven’t been fulfilled
• the Will doesn’t leave you anything (or enough) 
• lifetime gifts have been made, which mean a beneficiary then receives more than their fair share
• there’s reason to believe that the Will may not have been validly made.

There are formal requirements that apply to Wills. If a Will hasn’t been properly signed and/or witnessed, it won’t be valid. The person making the Will must have the necessary level of mental capacity, truly understand the terms and effect of the Will and been acting of their own free Will. 

A Will can also be invalid if it has been made as a result of ‘a poisoning of the mind’. This is where lies are told that convince the person making the Will to disinherit someone or leave them less.

It’s best to challenge the validity of a Will as soon as possible after a person has died. 

If you have concerns over the validity of a Will, you may be entitled to enter a caveat against the estate to prevent the Grant of Probate being issued. Entering a caveat will allow you time to undertake investigations regarding the circumstances in which the Will was made.

However, if you haven’t entered a caveat, it’s still possible to contest a Will even after the Grant of Probate has been issued.

Since strict time limits apply to certain types of claims, it’s important to seek legal advice as soon as possible.

This depends on the type of claim you may have, so it’s best to seek advice as soon as possible. Strict time limits apply to certain claims, whereas others have no time limit at all.

If you have concerns over the validity of a Will, you may be entitled to enter a caveat against the estate before the Grant of Probate is issued. 

This is something that we can do for you while we investigate your claims.

The cost of contesting a Will varies from case to case, depending on the circumstances, the volume of documentary evidence and number of potential witnesses.

Once we have a full picture of the facts and the potentially available evidence, we’re able to provide an accurate estimate of the costs that might be incurred at each stage. 

We pursue cases on a step-by-step basis and ensure that our clients aren’t incurring legal fees unless they have a good case to pursue. Our clients are fully informed at each stage to enable them to make informed decisions about their case.

It’s often misconceived that in inheritance disputes, legal costs are automatically paid out of the estate. This isn’t necessarily true, as the usual rule in court proceedings is that the losing party pays the winning party’s costs. However, it’s unlikely that a judge will award a party 100% of their costs back. 

As the costs rules are complex, it’s vital that you take advice from experts in this field of law.

It’s also important to remember that many cases don’t reach the stage of court proceedings — and even if they do, over 95% of such cases are resolved before they reach a fully contested trial in front of a judge.

For a Will to be valid, it must be signed and dated, in writing and witnessed in the presence of two adults who aren’t beneficiaries. 

To make a Will, you must be over the age of 18 and have mental capacity. You need to understand the nature and effect of a Will, know your assets and how they’ll be distributed after your death and who may expect to benefit from your Will. You must truly understand the terms of the Will that you make and it must represent your own wishes (not someone else’s). If you’ve been lied to or convinced to make the Will, it could be invalid. 

While homemade Wills can be problematic and easy to contest, even those prepared by professionals can be open to challenge.

The type of claim you pursue — or the basis on which you’re challenging the Will — will determine what evidence you’ll need.

We can guide you through the process, gather and review the evidence and give you expert advice on the merits of your arguments.

Usually, the residuary beneficiaries need to deal with these claims. However, executors also have responsibilities, such that they may also need to take independent legal advice and representation.

We regularly act for other lawyers who are appointed in a professional capacity to administer an estate — whether as the named executor in a Will or as a court-appointed independent administrator.

A caveat is a document lodged at the Probate Registry to prevent a Grant of Probate being issued. It’s used when the validity of a Will is being challenged or when there are concerns as to whether an executor is a suitable person to administer an estate.

Undue influence is when a person convinces or coerces someone else into doing something they otherwise wouldn’t do, if they were acting of their own free will.

This can lead to lifetime gifts or a Will being made or changed to benefit the person exercising the coercion.

You may suspect undue influence if a loved one has made a gift which is out of character, has changed their Will in a way that’s inconsistent with previous Wills or you believe that it doesn’t accurately reflect their wishes. 

You may also have concerns if the deceased was ill or frail at the time the gift or Will was made, if a person benefiting under a Will wasn’t included in previous Wills or they were due to inherit a lot less.

If a gift is made as a result of undue influence, it can be set aside and is liable to be repaid.

If a Will is made as a result of undue influence, it’s invalid and the deceased’s estate will fall to be distributed under a previous Will or the rules of intestacy.

Challenging a gift or Will due to undue influence can be complex. Often, a person exerting undue influence on another does this in private, behind closed doors, without anyone else around. 

We have expertise in investigating, identifying evidence which may point to undue influence, understanding the merits of a case and presenting it in its best possible terms to achieve the most favourable outcome.

The intestacy rules are set out in legislation and explain who is entitled to take out the Grant and who receives the estate if the deceased didn't leave a Will.