Is it Possible to Challenge a Will After Probate?

When a person dies, their estate usually goes through a legal process known as probate. The grant of probate confirms the authority of the executor to collect the assets and distribute them in line with the will. It is sometimes assumed that once probate has been issued, the contents of the will cannot be questioned.

In reality, the law in Ireland does allow challenges after probate has been granted. Some claims can only be brought once probate is in place, and others may be made either before or after. Strict time limits and detailed rules apply, which makes early legal advice essential for anyone who believes they may have been left without proper provision.

What is probate?

Probate is the legal process that confirms a will is valid and gives authority to the executor to deal with the estate. Once the Probate Office issues a grant of probate, the executor is formally recognised and may collect bank accounts, sell property and pay any debts before distributing what remains to the beneficiaries.

This stage is significant because it provides the executor with legal power over the estate. Without a grant of probate, most financial institutions and the Property Registration Authority will not release assets. For that reason, probate is the point at which the estate moves from being under the control of the deceased person’s wishes to the responsibility of the executor, who must administer it according to the law.

Grounds for contesting a will

Irish law recognises several situations where a will may be questioned in court. Common grounds include the following:

• Lack of mental capacity – The person making the will must have been capable of understanding the nature and effect of the document at the time it was signed. If they did not have this capacity, the will can be contested.
• Undue pressure – Where evidence shows that the testator was coerced or improperly influenced so that the will does not reflect their true wishes, the document may be set aside.
• Non-compliance with legal formalities – For a will to be valid, it must be in writing, signed by the testator, and witnessed by two people present at the same time. If these requirements are not met, the will is open to challenge.
• Fraud or forgery – A will that has been created or altered fraudulently, or where a signature has been forged, is not valid and may be overturned.
• Failure to make proper provision for family – The Succession Act 1965 provides rights for spouses and certain dependants. In addition, children may bring claims where a parent has not fulfilled their moral duty to provide for them.
• Unclear wording – If the terms of a will are ambiguous or open to conflicting interpretations, disputes may arise, and the courts may be asked to determine the correct meaning.

Challenging a will before and after probate

The point at which a will is challenged can make a significant difference to how the case proceeds.

Before probate

• A person who intends to dispute a will may lodge a caveat with the Probate Office.
• A caveat prevents probate from issuing and gives the challenger time to prepare their claim.
• This route is generally more straightforward because the executor does not yet have authority to deal with the estate.

After probate

• It is still possible to contest a will once probate has been granted.
• The challenger may have to apply to court to revoke the grant or to bring a statutory claim.
• Post-probate challenges are usually more complex and may be costly, especially if assets have already been distributed.

Section 117 applications

Irish law recognises that children may sometimes need protection where a parent has not made adequate provision for them in a will. Under Section 117 of the Succession Act 1965, a child can apply to the court claiming that the deceased parent failed in their moral duty to make proper provision from the estate.

A Section 117 application is tightly tied to the grant: the 6-month clock runs from the first grant of representation, and the court cannot make an order unless the application is brought within that period. The time limit is strict, and the court has no power to extend it. In deciding the case, the court will look at all the circumstances, including the means of the parent, the position of the other children, and any benefits already given during the parent’s lifetime.

Section 117 claims are often complex and fact-specific. They require careful preparation and evidence to show that the parents’ will, or intestacy, failed to meet the legal duty owed to the child.

Other post-probate challenges

Although Section 117 applications are the most common type of post-probate claim, Irish law allows for other challenges after a grant has issued. Examples include:

• Invalid execution or lack of capacity – If evidence emerges that the will was not properly signed and witnessed, or that the testator did not have testamentary capacity, an application can be made to set aside the grant.
• Undue influence or fraud – Where it is shown that the will was obtained through pressure, deception, or forgery, the court may revoke the grant of probate.
• Spouse’s legal right share – A surviving spouse is entitled to a fixed legal right share of the estate under the Succession Act 1965. If this right has not been honoured, a claim may be pursued even after probate has been granted.
• Proprietary estoppel – Where the deceased made promises, for example, to transfer land or a business, and another person relied on those promises to their detriment, the court may intervene to enforce those rights.
• Interpretation disputes – Ambiguities or conflicting provisions in a will may require the High Court to interpret its meaning, even after the grant of probate has been issued.

In all these cases, the fact that the executor already has authority to deal with the estate makes proceedings more challenging. If assets have been distributed, recovery can be difficult and expensive. For this reason, while post-probate challenges are possible, it is generally advisable to act before the grant is issued if concerns exist.

Assistance with challenging a will after probate

Challenging a will after probate has been granted is possible under Irish law, but it is rarely straightforward. Applications under Section 117 must be made within six months of the grant, and other grounds such as invalid execution, undue influence, fraud, or disputes over interpretation often require complex court proceedings. Acting before probate by entering a caveat is usually more effective, but where that is not done, post-probate remedies remain available.

If you believe you may have grounds to contest a will, the probate team at McCarthy + Co Solicitors LLP can provide expert assistance and guide you through the process. Arrange a consultation with a solicitor by completing our quick and confidential online form.