Practitioners told: issue will challenges before grant

The strict six-month limitation period under section 117 of the Succession Act 1965 “can be particularly harsh” for deserving applicants, a seminar has heard. 

Niall Fahy BL was speaking at a probate update (13 May), hosted by the Law Society and the Probate Bar Association (PBA).

Opening the event, PBA chair John E Donnelly SC, noted that the “slightly unusual,” association membership is open to both barristers and solicitors as probate matters often involve both sides of the profession. 

Limitation periods

In his presentation, STEP member Niall Fahy examined the limitation periods that arise in succession disputes.  

For section 117 claims, Fahy noted that the six-month limitation period runs only from the extraction of a full grant of probate or letters of administration with will annexed.

Limited grants, including ad colligenda bona grants and grants ad litem, do not start time running.

Key points highlighted included:

• the six-month period is strict and admits of no extension, even for minors or vulnerable applicants,
• the limitation period has been treated as jurisdictional so the court may lack power to hear a late claim,
• personal representatives are not obliged to notify potential section 117 claimants of their rights,
• in Rojack v Taylor [2025] IEHC, the High Court suggested that encouraging a section 117 claim could itself amount to a breach of duty.

Fahy said similar considerations apply to section 194 claims under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

Cohabitant status

However, he noted a possible distinction where only a declaration of qualified cohabitant status under section 172 is sought, potentially engaging a separate two-year limitation period. 

The barrister also addressed testamentary contract and promissory estoppel claims, commonly arising in farming and family property disputes where promises are made regarding inheritance of land or property. 

Fahy stressed that these claims are generally subject to section 9 of the Civil Liability Act 1961.

Proceedings must usually issue within two years of death or within the ordinary limitation period applicable to the underlying cause of action, whichever expires later.

He further noted that:

• Equitable framing will not avoid the section 9 limitation period,
• Promissory estoppel claims remain subject to the same statutory restrictions,
• Mixed proceedings can involve different limitation periods running simultaneously.

Fahy pointed to the possibility that a promissory estoppel claim could become statute-barred before a section 117 claim is capable of issue where probate has not yet been extracted.

Declaratory relief

On will challenges, he said there is no strict statutory limitation period because such claims are treated as equitable claims for declaratory relief.

However, defendants may rely on delay and laches where estates have already been administered or distributed.

Practitioners were advised to issue will challenges before grant and to lodge caveats promptly.

Caveats were described as useful in will disputes but potentially counterproductive in section 117 or testamentary contract claims where time continues to run irrespective of probate.

Regarding section 27(4) applications under the Succession Act 1965 for the appointment of an administrator ad litem, Fahy stressed that proceedings should not issue before a grant is obtained and warned that premature proceedings may be invalid and incapable of retrospective cure. 

In her overview of recent case law, Rosemarie Carroll BL (secretary of the Probate Bar Association), identified five decisions of note.

In McNally [2025] IEHC 299 Ms Justice Stack considered whether an obliteration in a will amounted to a valid partial revocation. The deceased had scored out a substantial bequest to his brother and replaced it with a nominal gift.

Same formalities

The court relied on section 86 of the Succession Act 1965, which provides that alterations after execution are ineffective unless executed with the same formalities as the will. 

Key findings included:

• no sufficient evidence of an intention to revoke the original gift,
• the obliteration did not comply with section 86,
• in the absence of witnesses, the court inferred the alteration likely post-dated execution.

The original bequest therefore survived.

In McCulloch [2025] IEHC 400, the court considered whether a codicil referencing an earlier will could revive it, despite a later revoking will.

Applying section 87 of the Succession Act 1965, the court held that revival requires clear intention.

Mere reference to the earlier will was insufficient. The 2020 will therefore remained operative.

Extrinsic evidence

Rosemarie Carroll noted that the court nonetheless applied the 'armchair principle' when assessing surrounding circumstances, though no ambiguity justified extrinsic evidence.

In the case of Doran [2025] IEHC 646, Ms Justice Stack considered whether beneficiaries were disqualified from taking under a will after witnessing a codicil.

Section 82 of the Succession Act 1965 renders gifts to attesting witnesses void. However, the court held:

• the beneficiaries did not take under the codicil they witnessed;
• therefore section 82 did not apply;
• both will and codicil were admitted to probate.

Carroll noted the court placed weight on the fact the witnesses ultimately took less under the codicil than they would otherwise have received, and again emphasised the importance of professional drafting of testamentary documents.

In McGoldrick [2025] IEHC 750, the court addressed testamentary capacity in respect of a 2015 will under the Banks v Goodfellow test, as affirmed in Flannery v Flannery.

Multiple previous wills

The deceased had a history of multiple previous wills and, despite evidence of memory issues and delusions, the court held that the deceased understood she was making a will and had sufficient awareness of her estate and beneficiaries, and admitted the 2015 will to probate.

Finally, in Doyle v Doyle and Anor, the High Court considered when a beneficiary’s entitlement accrues for limitation purposes under section 45 of the Statute of Limitations 1957.

The court held that entitlement to specific property under a will does not arise on death.

Executors hold assets for administration, and only once debts, liabilities and potential claims are resolved does the beneficiary’s right accrue. The claim was therefore not statute-barred.