I am asking this question for a friend who lives in another part of the country. Her husband died recently but only left her a right to live in their home for the reminder of her life. He left everything to his son. My friend is devastated and said that “she doesn’t even own the roof over her head”. Is there anything she can do to challenge this will?
The straightforward answer is yes. When a spouse is left out of a will, the law governing wills, being the Succession Act, 1965, steps in and provides unique protection for spouses. A spouse is entitled to one-half of the estate of the deceased spouse if he/she died having made a valid will and had no children. A spouse is entitled to one-third of the estate of the deceased spouse if he/she died having made a valid will and had
children. A spouse does not have to go to court to get their entitlement as the executor is obliged to grant this share where applicable. Another avenue which may be explored would be the issue of mental capacity of the
deceased person who made the will (the Testator). In order to make a valid will the Testator must, in the eyes of the law, possess the mental capacity to do so. This means that the individual making the will must not be suffering from any mental condition which would compromise their ability to give full and rational instructions in relation to their will. The mental capacity of the testator is relevant at the time of making the will and not at the time of death. Being elderly in itself does not suggest that a person lacks mental capacity to make a will. If there is an issue as regards mental capacity then the whole will could be challenged. A person, if they find themselves in difficulty, should contact a Solicitor immediately to obtain legal advice. There are a number of other elements that have to be researched. Of course it is important to make sure the spouse did not enter into any arrangement with the spouse prior to their death that would extinguish their entitlements under law. This situation would ordinarily occur if there had been a legal separation agreement.