="stylesheet" />Probate Litigation

When making your Will it is important to know the circumstances when a valid Will can be challenged so as to avoid the possibilty of your Will being set aside by a court.

Section 117- Under the Succession Act, 1965, section 117 provides that where a child of the deceased can show that the deceased person has failed in their moral duty to make proper provision for a child, in accordance with their needs, then the court may then order such provision be made as the court thinks fit.

Children do not have an automatic right to make a claim pursuant to section 117 of the Succession Act, 1965. It is necessary for the child to show a need on their part at the date of death of the deceased and that they deceased had the capacity to provide for the child and they failed to do so.

Previous gifts or inheritance made to the child during their lifetime by the deceased will be taken into account by the court.

It is important to note proceedings must be issued within six months of the date of the Grant of Probate issuing in the estate of the deceased. This period of time cannot be extended. After this time a child will not have a right to make a claim.

There is no obligation on the executor of an estate to notify the child of their right to bring a section 117 claim.

Case law in this area over the years has set out criteria which the courts consider:

  1. The child's age and position in life
  2. The child's financial means
  3. The amount left to the spouse
  4. The number of children of the deceased, their age and position in life
  5. Whether the child received previous gifts from the deceased

Validity of a Will - A Will may be challenged on the basis of it not being a valid Will and not complying with the legal requirements as set out in The Succession Act, 1965.

Undue Influence- When a person makes their Will and if they are subjected to undue influence that Will can be set aside by a court. Undue influence results in a person making a Will which is not a true reflection of their wishes which can often be due to pressure exerted on the person by another party.

Expectation - If you made substantial contribution to the upkeep of a property (e.g. a farm) on the understanding that you would be left the property on the death of the owner and the Will makes no provision for you in relation to the property, you should seek legal advice as soon as possible to ascertain any right of action that you may have.