New law aims to prevent ‘blackmail value’ of challenges to wills

If you are considering making a will you should discuss the matter with family members as well as getting legal advice
If you are considering making a will you should discuss the matter with family members as well as getting legal advice
Ciaran Moran

Ciaran Moran

Independent Senator Michael McDowell has introduced a new bill in the Seanad which aims to reform the law regarding the payment of costs to unsuccessful parties who challenge wills.

Under ordinary rule of practice in the civil courts, where a challenge is brought to a will, generally follow the rule that, if the challenge is brought in good faith and is reasonable, the challenger is entitled to have the costs of the challenge - this is in addition to the costs of defending it - paid out of the estate even if he or she fails.

The former Minister and Attorney General outlined a number of reasons for believing this rule is unfair including that the Constitution guarantees the general right to devise, bequeath and inherit property, subject to the provisions of the Succession Act, which afforded extensive protections to parties so as to ensure that they were dealt with properly.

He highlighted that recently, the President of the High Court said that one would need to be either a millionaire, billionaire or pauper to go to law voluntarily these days.

As a consequence, he said any kind of case in the Circuit Court or High Court can be very expensive and outside the grasp of ordinary people to conduct.

“Such cases can be dealing with limited estates, for example, the value of a small house in Dublin, which is €300,000.

“If that gets involved in a tangle between the executor, one of the children and another of the children and everyone starts looking for costs, the estate often gets gobbled up or seriously dented rapidly,” he said.

Mr McDowell said the purpose of the Bill is to change the situation so that the ordinary rules of handling costs in litigation should apply in challenges to a will.

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The costs follow the event subject to a discretion of the judge not to do so.

This Bill would effectively reverse the current practice meaning in future, if someone brings an unsuccessful challenge to a will, such a challenge will normally be at the challenger's own expense and he or she will be liable to pay the costs of the executor in defending the will if the challenge is not merited.

Mr McDowell said that in it is his experience that, where a challenge is mooted or brought, the reaction of the executor and the people who are likely to gain from the defence of the will is frequently to say that, although they do not believe there is any merit in the challenge, they will need to buy off the challenge in light of the current practice.

“Consequently, people who are not entitled to a share in the estate or are entitled to a lesser share are suddenly put in the position of effectively having, I do not want to use the term pejoratively, a blackmail value to their challenge, which means that the people who are entitled to succeed to an estate in a will must effectively buy them off.

“The rule increasingly acts unjustly.

“It is easy for someone to imagine that he or she has a good case against a brother or sister for using undue influence to procure a will in the sibling's favour.

“It is an easy charge to make,” he said.

The Government, while accepting the policy objective pursued by the Bill, has said that the proposed amendments will require careful scrutiny and some redrafting in order to ensure coherence with existing practice in probate matter and to ensure people’s right to access to justice. 

It has raised concerns that the blanket provision proposed would preclude parties from obtaining costs could prevent people who have genuine concerns regarding a will or the administration of an estate from seeking to exercise their right to access to justice.

The Minister for Justice has entered into a consultation with the Office of the Attorney General to ascertain whether the policy objective of the Bill can be achieved by a means other than the approach taken.

The Government has approved the Minister’s recommendation that the Bill should not be opposed at Second Stage in the Seanad on the understanding that amendments to the Bill will be tabled by the Government at Committee Stage. 

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