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