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Wills and Probate

Spain Toomey and Walls Solicitors can advise and assist you in relation to the making of a Will. We believe that everybody should make a Will.

If you die without making a Will, your Estate will be divided by Law and this might be the opposite of what you would like. We will advise you on your obligations in respect of your children and Spouse.

We will provide advice to you on the impact of marriage breakdown on Wills and Succession Act Right entitlements.

Our services include:

  • Wills
  • Grants of Probate
  • Grants of Administration
  • Enduring Power of Attorney

Marriage Breakdown and Wills

If the party who makes the Will (Testator) is married, he has to make proper provision for the other Spouse and children.

If there are no children, a surviving Spouse has the right to half the Estate including the family home. If there are children, the surviving Spouse has a right to one thirdof the Estate.

If a Testator has disposed of property within three years of death in an attempt to disinherit a Spouse or children, the Court may rule this disposal as void.

A Spouse who has deserted or committed a serious offence against the person making the Will or his or her children loses the right to a share in the Estate.

A Spouse’s legal right may be extinguished following a Judicial Separation and will completely be extinguished after a Divorce.

A husband and wife’s rights to succeed to each other’s Estates may also be extinguished by the Court at any time on or after a Decree of Judicial Separation under the Family Law Act 1995. Succession Act Rights are automatically extinguished after a Divorce as the parties are no longer husband and wife.

Failure to make provision for children

If a Testator fails to make proper provision for any children in a Will, a child of any age may bring an Application under Section 117 of the Succession Act within 6 months from the first taking out of representation (Grant of Probate, Grant of Administration), the Court considers this matter in private and will take into account the following factors:

  • The amount left to the surviving Spouse
  • The number of children
  • The ages and positions in life of the children
  • The Testator’s means
  • The Applicant’s financial position

And any other provision which has already previously been made.

Claim by a former spouse

Section 18 of the Family Law and Divorce Act 1996 and Section 25 of the Family Law Act 1995 empowers the Courts to make provision for a former Spouse out of the Estate of a Deceased former Spouse. This Application can only be made by a Spouse who is not re-married and the award cannot be in excess of the share to which he or she would have been entitled to under the Succession Act if the marriage had not been dissolved. There is a limitation period for making this claim as follows:

  • For a Decree of Divorce issued in Ireland 6 months.
  • For a Divorce issued in a foreign country 12 months.