Grounds for Contesting a Will in Ireland

The death of a parent, spouse, or close relative is difficult enough without the added shock of discovering that their will does not say what you expected. In some cases, the document itself looks unusual, perhaps a recent homemade will that displaces a long-standing solicitor-drafted version. In other cases, the formalities are in order, but a spouse, civil partner, child, or qualifying cohabitant has been left with little or nothing. At McCarthy + Co Solicitors LLP, we regularly advise families across the country who are weighing up whether, and on what basis, a will can be challenged.

Irish law starts from a strong presumption in favour of testamentary freedom. A testator is generally entitled to leave their estate to whomever they wish, and the courts will uphold a validly executed will wherever possible. There are, however, several recognised grounds on which a will, or the distribution of an estate under it, can be contested.

The legal framework

The starting point for any will challenge is the Succession Act 1965, which remains the foundation of Ireland’s succession law. The 1965 Act sets out the formal requirements for a valid will, the legal right share of a surviving spouse or civil partner, and the right of a child to apply to court under section 117 where proper provision has not been made for them.

The 1965 Act sits alongside several other important pieces of legislation, including the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, which extended succession rights to civil partners and introduced a redress scheme for qualified cohabitants, and the Assisted Decision-Making (Capacity) Act 2015, which has been substantially in force since April 2023. Section 140 of the 2015 Act expressly confirms that the new functional capacity framework does not alter the law on capacity to make a will, so the long-established common law test continues to apply.

With that framework in mind, the grounds for contesting a will fall into six broad categories.

1. Lack of testamentary capacity

A will is only valid if the testator had the mental capacity to make it at the time of execution. The Irish courts continue to apply the classical test laid down in the English decision of Banks v Goodfellow (1870), which requires that the testator:

• Understands the nature of the act of making a will and its effects.
• Understands the extent of the property of which they are disposing.
• Is able to comprehend and appreciate the claims of those who might be expected to benefit, including a spouse, children, and other dependants.
• Is not suffering from any disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties.

Capacity challenges most often arise where a will was made by an elderly testator who had been diagnosed with dementia, Alzheimer’s disease, or another condition affecting cognition, or where there is evidence of confusion, lucid intervals, or significant medication at the time of execution. Medical records, GP notes, and contemporaneous evidence from the drafting solicitor are usually central to the dispute. Where the drafting solicitor followed the so-called “golden rule” and obtained a contemporaneous capacity assessment from a medical practitioner, a challenge becomes considerably more difficult.

2. Undue influence

Undue influence is the legal expression for coercion that overbears the will of the testator and produces a document that does not reflect their true wishes. The bar is high. The Irish courts have consistently held that mere persuasion, family pressure, or even strong moral influence is not enough. There must be evidence of coercion sufficient to displace the testator’s free judgment.

Undue influence is most commonly alleged where the testator was elderly, isolated, or dependent on the principal beneficiary, and where the will was made in circumstances of unusual secrecy. Warning signs include:

• A sudden and unexplained change in testamentary intentions, particularly in favour of a carer, a new partner, or one child to the exclusion of others.
• The principal beneficiary being involved in arranging the appointment with the solicitor, providing instructions, or accompanying the testator to the signing.
• The testator being physically frail or socially isolated at the relevant time.
• A homemade will that departs sharply from earlier solicitor-drafted versions.

The burden of proof lies on the person alleging undue influence, and circumstantial evidence alone is rarely sufficient. At McCarthy + Co, we usually recommend that clients in this situation begin by obtaining the deceased’s solicitor’s file and any available medical records as early as possible, since the documentary trail is often decisive.

3. Failure to comply with the legal formalities

Sections 77 to 82 of the Succession Act 1965 set out the formal requirements for a valid will. In broad terms, a will must:

• Be in writing.
• Be made by a person who is aged 18 or over (or who is, or has been, married), and who is of sound disposing mind.
• Be signed at the foot or end by the testator, or by some person in their presence and at their direction.
• Be signed or acknowledged by the testator in the presence of two witnesses, both present at the same time, who must then sign in the testator’s presence.

A failure to comply with these formalities can render a will invalid, either in whole or in part. One trap that catches people out is section 82 of the 1965 Act. If a beneficiary, or the spouse or civil partner of a beneficiary, acts as a witness, the gift to that beneficiary is void, even though the will itself remains valid. We see this in practice with homemade wills witnessed by a family member who stands to benefit, with the result that the intended gift fails entirely.

The Citizens Information service publishes a useful general overview of these formal requirements, but where there is any doubt about whether a will has been validly executed, the document should be reviewed by a solicitor as a matter of priority.

4. Fraud or forgery

A will procured by fraud, or a will that has been forged or altered without the testator’s knowledge, is not a valid will. Fraud in this context covers a range of conduct, including a beneficiary deceiving the testator about a material fact in order to procure a gift, and the deliberate falsification of a signature or the substitution of pages.

Forgery cases are comparatively rare but tend to involve homemade wills produced after death by a person who would benefit substantially from the document. Handwriting analysis, forensic examination of the paper and ink, and evidence from those said to have witnessed the will are usually required. As with undue influence, the burden of proof is on the person making the allegation, and the standard of proof is high given the seriousness of what is being alleged.

5. Failure to make proper provision for a spouse, civil partner, child, or cohabitant

This is the most common form of will challenge, and it is important to distinguish between the different categories of applicants.

Spouses and civil partners. A surviving spouse has a legal right share under section 111 of the Succession Act 1965, and a surviving civil partner has the equivalent right under section 111A (inserted by the 2010 Act). Where there are no children, the legal right share is one-half of the estate. Where there are children, it is one-third. This right cannot be defeated by the terms of the will. If the will leaves the spouse or civil partner less than the legal right share, they may elect to take the legal right share in priority to the bequest. The election must be made within six months of receiving notification of the right to elect, or within one year of the date of death, whichever is later.

Children. Unlike a spouse or civil partner, a child has no fixed entitlement under the 1965 Act. Instead, section 117 of the Succession Act 1965 allows a child of any age to apply to court for an order that proper provision should be made for them out of the parent’s estate, where the parent has failed in their moral duty to make proper provision in accordance with their means. The leading principles, set out by Kenny J in In re GM; FM v TAM (1972) and consistently applied since, require the court to consider:

• The amount left to the surviving spouse or civil partner.
• The number of the testator’s children, their ages, and their position in life at the date of death.
• The means of the testator.
• The age, financial position, and prospects in life of the applicant child.
• Whether the testator had already, during their lifetime, made proper provision for the child.

The court applies a two-stage test: first, whether the testator failed in their moral duty, and, if so, what provision ought now to be made. A useful introductory overview is available in the Bar of Ireland’s Probate Bar Association article on section 117. It is important to appreciate that there is no automatic right to a share of a parent’s estate, that section 117 applies only where the parent died testate, and that the burden lies firmly on the child.

Qualified cohabitants. A surviving cohabitant has no automatic entitlement, but a “qualified cohabitant” may apply to court for provision out of their deceased partner’s estate under section 194 of the 2010 Act. A qualified cohabitant is, broadly, a person who has lived with the deceased in an intimate and committed relationship for at least five years, or two years where there is a child of the relationship, and who is not married to another person in circumstances that prevent qualification. The court has a wide discretion as to the provision it may order.

6. Disputes over the interpretation or construction of a will

Not every challenge is to the validity of the will. In some cases, the will is unquestionably valid, but its language is ambiguous, inconsistent, or fails to deal clearly with a particular asset. Construction summonses to the High Court are used to ask the court to determine the meaning of a particular clause, the identity of a beneficiary, or the scope of a residuary gift.

Common construction issues we encounter include unclear descriptions of property (particularly where the testator owned more than one similar asset), gifts to a class of beneficiaries where it is unclear who falls within the class, and the so-called “doctrine of lapse” where a beneficiary has died before the testator. Where the disputed sum is significant, professional advice should be taken before any informal agreement is reached among the beneficiaries.

Time limits: the most important practical point

Whatever the ground for challenge, time limits are unforgiving, and the courts apply them strictly. The principal limits to keep in mind are:

• Section 117 applications by a child – six months from the date of the first grant of representation. This period cannot be extended.
• Election by a spouse or civil partner to take the legal right share – six months from receipt of notification of the right to elect, or one year from the date of death, whichever is later.
• Applications by a qualified cohabitant under section 194 of the 2010 Act – six months from the issue of the grant of representation.
• Challenges to the validity of a will (capacity, undue influence, fraud, formalities) – there is no single statutory limitation period, but the practical reality is that a challenge should be raised before the grant of probate issues by lodging a caveat in the Probate Office. Once an estate has been distributed, recovering assets becomes considerably more difficult.

Because the six-month section 117 window begins to run from the grant of probate rather than from the date of death, and because beneficiaries have no general duty to notify a child that a grant has issued, we always advise potentially affected children to take legal advice as soon as they become aware of the death and to monitor the position in the Probate Office.

How the process often unfolds

In a typical case, our wills and probate team will:

• Obtain a copy of the will and any earlier wills from the Probate Office or the deceased’s solicitor.
• Request the drafting solicitor’s file, including attendance notes, capacity assessments, and correspondence.
• Obtain the deceased’s medical records where capacity or undue influence is in issue.
• Lodge a caveat in the Probate Office where appropriate, to prevent a grant from issuing while the matter is investigated.
• Advise on whether the matter can be resolved by negotiation, mediation, or a family settlement, or whether court proceedings are necessary.

Many disputes are resolved without a full hearing. Mediation, in particular, is increasingly used in probate disputes and can preserve relationships that would otherwise be irreparably damaged by contested litigation. Where proceedings are unavoidable, jurisdiction lies with the Circuit Court (in estates valued at up to €3 million) and the High Court for larger estates.

A note on costs

A common misconception is that the costs of a will dispute will always come out of the estate. They will not. The general rule is that costs follow the event, and an unsuccessful challenger may be ordered to pay both their own costs and those of the executors and other beneficiaries. The court has a discretion to depart from this rule where the dispute has been caused by the conduct of the testator or by genuine ambiguity in the will, but no one should embark on a will challenge in the expectation that the estate will fund both sides indefinitely.

Need legal advice about contesting a will?

Contesting a will is a serious step, with strict time limits, real cost exposure, and often significant family implications. At McCarthy + Co, our wills and probate team has extensive experience advising both those who wish to challenge a will and those defending one. If you are concerned that a loved one’s will does not reflect their true intentions, or that proper provision has not been made for you or your family, arrange a confidential consultation using our online form. We will be happy to review the documentation with you and explain, in plain English, what your options are and how quickly you may need to act.