In a previous blog, we looked at why a will is so important. Once you have decided to make a will, the next important step is to make one that is workable in its administration. A good will should make things easier for those left behind, not subject them to lengthy legal struggles. However, contested wills remain a feature of the Irish legal life. Here, we look at the steps that you can take to avoid this issue.
A common legal phrase is that a will speaks from death. Clarifying a point of contention from beyond the grave is obviously impossible and so your will and if necessary supporting documents must be as self-explanatory as possible.
A good solicitor will always endeavour to foresee and head off any potential difficulties arising out of a will when drafting. However, contest over who is truly entitled to what remains common in Irish law.
Podcast: Why A Will Might Be Challenged
Who contests a will?
The personal representative of the deceased is charged with administering the estate. The personal representative is either the person nominated by the deceased to do the job or a close family relative if no such nomination took place.
If a person takes issue with how the personal representative is administering the will, they can bring the matter before the courts.
Usually, in litigation, the costs of bringing the matter to court are borne by the parties and most often by the losing side alone.
However, when a will is contested, the court usually allow costs to be taken from the estate of the deceased if it is satisfied that there were reasonable grounds for starting proceedings and that they were conducted in a bona fide manner.
The problem here is that you might start off with an estate worth a lot of money but if you have to take out the costs of litigation, that sum is going to be a lot less and everyone might be the loser.
Video: Wills, Estates & Enduring Power of Attorney
Lynch Solicitors for Information Purposes Only
Interesting recent cases of contested wills
This case concerned the interpretation of a will of a deceased grandmother whose will spread her assets across a number of beneficiaries. One such beneficiary was her grandson who she bequeathed a plot of land “not more than half an acre to make up the site of his proposed new house should he require same.”
When all was said and done, the parties contesting the will had gone from the High Court to the Court of Appeal debating the meaning of
“should he require”. The costs undoubtedly outweighed the value of one half acre of land.
Interestingly, the court were influenced by the background information to decide the matter and held for the grandson who was allowed to keep the half acre. The fact that the deceased had encouraged the grandson during her lifetime to use the land to create a garden and consented to his use of it for a playground for his own children were all deemed relevant factors.
This case concerned a diplomat who had made a will in March 2013 which included leaving his house to his partner, Mr Laasers.
However, after a deterioration in his health and two days prior to his eventual passing, the deceased drafted a new will (revoking the previous will) which divided this asset between his partner and siblings.
This new will was contested and the court ultimately ruled that when a person was, as they put it “obviously so enfeebled and immediately close to death” as the deceased was at the time of the second will, that affirmative medical evidence is required to show that the deceased had at that time the capacity to make the will.
Essentially, the court was saying that for a will that is made by a person in such an enfeebled state to stand up, medical evidence must be produced to state that the person was of sound mind, able to understand the nature and detail of what they were doing.
As no such evidence existed in this case, the second will was held to have never been properly drafted and so the original March will was used to administer the estate.