Querying the last will and testament in court

With more wealth to be divvied up, challenges to wills are on the rise, writes Laura Slattery

In a move reminiscent of a soap opera plot, the late television mogul Aaron Spelling has reportedly all but cut his actress daughter out of his will, leaving her a mere $800,000 (€625,000).

The sum may have too many zeroes on it for most of us to feel moved by the plight of 33-year-old Tori Spelling.

But considering that her Dynasty-creating father is estimated to have built up a personal fortune of $500 million, the inheritance looks like an insult.

In a world of 123-bedroom Beverly Hills mansions, it is a pittance, equal to just 0.16 per cent of her father's wealth.

If reports that Tori is hurt and confused by the contents of the will - written just four months before Spelling's death in June - are true, she will not be the first person to feel that way.

With more wealth in the country, more complex family arrangements and less willingness to accept traditional "eldest son" approaches to who should inherit, challenges to last will and testament are on the increase in Ireland, according to solicitors who work in the field.

The first type of challenges revolve around the making of the will. For example, was it properly signed and witnessed, and was the person of sound mind when they made the will, free of undue influence from third parties.

The second type of challenges, and the kind that are becoming more frequent, concern a person's "moral duty" to make "proper provision" for their children either under the will or otherwise, an obligation that was written into law in Section 117 of the 1965 Succession Act.

If one child feels they have been given a raw deal, this is the legislation they will use to take a case to court.

He or she doesn't have to be under 21 to argue that the deceased parent had a moral duty to provide for them, and a case can be taken on the child's behalf.

Under Section 117, the judge should arrive at a decision that will be "as fair as possible" to all of the children, without affecting the legal rights of a surviving spouse.

"Fairly doesn't mean equally and it doesn't mean you get a fixed percentage," says Dermot Coyne, a solicitor based in Lucan.

"You might be left €10 out of an estate of €1 million, but if you happen to be reasonably well off, then you might not be successful in taking a case."

If two children have been put through college by their parents and are doing-very-well-thank-you, but a much younger child is left all of the property after the second parent dies, the court might not necessarily agree with a claim by the older children that their parents have not properly provided for them.

The relative financial position - and health - of all of their children, both present and future, is a lot to consider.

A well-meaning parent, hoping not to spark a messy family feud, could end up constantly readjusting how they distribute their assets, as their children's circumstances change.

Happily, nothing is seen as fairer as an equal split. Courts have been reluctant to overturn them: if a family home is split four ways between four children, it is likely to stay that way.

And anyone with heaps of surplus cash stashed away runs the risk of getting short shrift by the courts.

"The courts are more and more holding against these claims unless people are not well off, and a lot of people are doing very well in Ireland today," says Coyne.

So under Irish law, Tori Spelling might find it hard to prove that her father had a moral obligation to bankroll her Hollywood lifestyle.

But with the value of the average person's estate having skyrocketed since the property boom, there is a lot more money to play for.

The days of the one asset in a will being a farm that is left to the eldest son, with the presumption that daughters will either marry or fend for themselves, are more or less over - but not quite.

"Some wills were written in the day and age where people might have been thinking that the son was going to be the big, strong farmer, but instead the farm has become potential development land worth millions," says Coyne.

Courts have looked favourably on daughters who have been left nothing purely as a result of antiquated ideas about who should have control of wealth.

Around 80-90 per cent of people divide the main property equally, according to Coyne, but it is not unheard of for people to snub prodigal sons and daughters in their wills.

A son with a gambling problem, for example, could see himself cut out completely, or he could find that his assets are tied up in a trust.

Discretionary trusts are subject to tax once all of the beneficiaries are past the age of 21, but parents might decide it is better for their beneficiaries to take the tax hit rather than see a gambler fritter it away.

Marrying someone your parents do not approve of is also not a good idea if you want to avoid being hastily written out of a will.

But going down the legal route can be protracted and expensive. Cases can take anything from three to nine years to get to court, with typical costs of an action on a €10 million estate amounting to €150,000 on each side.

The cost of the action must be borne by the estate itself, so the pot of money at the end of the legal machinations will be greatly diminished.

In some cases, people make claims on the basis that the deceased person did not have the proper mental capacity to write their will, for example where the person had Alzheimer's disease or dementia, according to Paraic Madigan, a partner at Matheson Ormsby Prentice.

Other claims involve undue influence being put on the person making the will by a third party who stands to gain by lobbying against potential rivals.

The will of Coronation Street's knicker factory owner Mike Baldwin, who suffered from Alzheimer's and was manipulated by one son into excluding another, could be challenged on either of these grounds.

As Ireland's 21st century wealth is mostly first-generation rather than inherited wealth, the potential for bigger and more frequent disputes between the family members can only increase as time goes by.

"Certainly where the value of estates has increased, people have a greater willingness to litigate," says Madigan.

With holiday homes in France and investment properties in Bulgaria, Irish wealth is now also commonly spread across borders.

This can only add to the complexity of executing a will and increase the potential for conflict, as different legal and tax systems clash as well as families, according to Aoife Walsh, a tax manager at Grant Thornton who specialises in estate planning.

For example, under French inheritance laws, children have an automatic right to a share of the French assets - there is no need to go to court to prove that the parent has failed in their moral duty.

While some people deliberately use their wills to send a blunt message to estranged family members from beyond the grave, it isn't always the case that money equals love. Self-made millionaires might subscribe to the idea that their kids should do it the hard way, rather than rest on the laurels of an inheritance.

Other people distribute assets in the most tax-efficient way possible, giving nieces, nephews and cousins bigger shares than they otherwise might.

But people have legal obligations to provide for their spouse and children. Tempting and straightforward as it might seem, you can't annoy everybody at once by leaving the entire estate to your dog.