DNA evidence/contesting a will

anfearcripte

Hi all,

I have only recently found out through DNA that my dad (d. 1998) was not my father. Through DNA match comparisons and other investigate work I have with 99% certainly figured out who my biological father was (d. 2013).
As I am actually his next of kin do I have any right at this stage to contest the will? The estate was settled in 2013.
This man never married or had no other children I'm aware of. He estate went to a nephew.
My mother had an affair with this man for many years but my siblings and I had no idea it went back as far as it did.

ittakestwo

anfearcripte wrote: »

Hi all,

I have only recently found out through DNA that my dad (d. 1998) was not my father. Through DNA match comparisons and other investigate work I have with 99% certainly figured out who my biological father was (d. 2013).
As I am actually his next of kin do I have any right at this stage to contest the will? The estate was settled in 2013.
This man never married or had no other children I'm aware of. He estate went to a nephew.
My mother had an affair with this man for many years but my siblings and I had no idea it went back as far as it did.

In Ireland you have six months to challenge a will from the time probate was granted.

TheW1zard

Nice try though

anfearcripte

TheW1zard wrote: »

Nice try though

Yeah I only found out about 6 weeks ago which was a bit of a shock to be honest.

NUTLEY BOY

Sympathies to you on what must be a most disconcerting discovery.

Although we don't know what is involved it would probably be worth your while taking advice from a solicitor on the formal legal position even if only to confirm the poor prospects of getting anywhere. If you do that you will at least know that you made a reasonable effort to inform yourself of your legal position.

BTW the evidentiary burden would be yours and could be very difficult to discharge as you would require evidence in an admissible form to get anywhere.

Claw Hammer

There are a number of hurdles. Even if you prove on the balance of possibilities the man was your biological father, the 6 month time limit has kicked in. Even if you got over that, based on fraud of some kind, your case is based on inadequate provision. The question then becomes, was this man under any obligation to provide for you in his will given your position and prospects in life?

NUTLEY BOY

P.S. I was checking something yesterday in Lyall's Irish Land Law and encountered his view on OP's type of situation.

In the context of S.117 Succession Act 1965 there was an issue about when the duty to make adequate provision arises. I read Lyall to mean that it arises in the context of the positions of the parties when the testator dies as distinct from the date on which the will was executed.

Interestingly, Lyall seems to take the view that it is an open question as to whether or not a testator has any obligation to make provision for an issue whose existence was unknown. This would seem to add to the uncertainty that OP would face in trying to make a S.117 type case.

Claw Hammer

NUTLEY BOY wrote: »

P.S. I was checking something yesterday in Lyall's Irish Land Law and encountered his view on OP's type of situation.

In the context of S.117 Succession Act 1965 there was an issue about when the duty to make adequate provision arises. I read Lyall to mean that it arises in the context of the positions of the parties when the testator dies as distinct from the date on which the will was executed.

Interestingly, Lyall seems to take the view that it is an open question as to whether or not a testator has any obligation to make provision for an issue whose existence was unknown. This would seem to add to the uncertainty that OP would face in trying to make a S.117 type case.

With regard to the situation of whether or not the testator new of the existence of the biological child, there is almost no way that can be established after death. The testator is not available to be cross-examined and given the stigma of havig nonmarital offspring, it is entirely plausible that the testator new of the existence of the offspring and simply kept it secret.

stringy

NUTLEY BOY wrote: »

P.S. I was checking something yesterday in Lyall's Irish Land Law and encountered his view on OP's type of situation.

In the context of S.117 Succession Act 1965 there was an issue about when the duty to make adequate provision arises. I read Lyall to mean that it arises in the context of the positions of the parties when the testator dies as distinct from the date on which the will was executed.

Interestingly, Lyall seems to take the view that it is an open question as to whether or not a testator has any obligation to make provision for an issue whose existence was unknown. This would seem to add to the uncertainty that OP would face in trying to make a S.117 type case.

The Irish courts have held that the relevant time period for assessing whether proper provision was made is at the date of death (Kenny J in FM v TAM [1972] 106 ILTR 82 and most recently White J in JF v SG [2015] IEHC 851)

Therefore the failure to make proper provision for a child is judged at date of death, irrespective of whether testator knew or not, of course the claimant child must show that s/he has a particular need.

In the OP case, the 6 month time limit is strictly applied - I can't see any way around this, and even if the executor knew of OP existence, the executor is under no obligation to contact the OP in relation to a possible claim under s 117.

Claw Hammer

Executors are wise to withhold payment of money for six months after the grant of probate in case there is a claim from a previously unknown child within that period. If the executor paid out before six months had expired and the child appeared with a claim, the executor could end up being personally liable.