Doreen Shivnen BL

Whether you are contesting a will or defending a will claim, Doreen Shivnen can advise, with over 30 years of experience in such matters. She has acted for claimants and defendants, including beneficiaries and prospective beneficiaries, trustees, executors and court appointed administrators. She has specialist experience working on a broad range of complex contentious probate cases, including actions to remove executors, to remove a trustee, will construction claims and estoppel claims and claims (by children) under section 117 of the Succession Act 1965. Doreen has a particular interest in challenges to a purported will on the basis of alleged lack of capacity and/or undue influence and has acted (both for plaintiffs and defendants) in several leading cases, including Lambert v Lyons and Flannery v Flannery. She has considerable experience in related issues such as discovery and costs in probate matters and has been involved in cases such as O’Connor v Markey (probate costs) and Dwyer v Dowling and O’Flynn [2019] IEHC 271 (discovery in probate cases).

Charitable trusts and cy-près

Doreen has a particular interest in charitable trusts and cy-près, the doctrine permitting, in certain circumstances, variation of charitable bequests. She has acted in applications to court by several such charities including, In the matter of the charity known as The Cheshire Foundation in Ireland [2012] 1 I.L.R.M. 369.

In the Estate of Mary Ann Horan (otherwise Maureen Horan) Deceased: MacNamara v Horan, [2023 249SP] the High Court made an order removing the defendant as a trustee of his deceased mother’s estate and appointed an alternative appropriate trustee. (The defendant had previously been removed as an executor.) The Court confirmed that the jurisdiction to remove a trustee should be exercised if the welfare of the beneficiaries demanded it, and affirmed the test in Arnott v Arnott [1924] 58 I.L.T.R 145.

In the Estate of John Coughlan Deceased [2022] IEHC 604 the principle of dependant relative revocation of a will was applied. A defective attempt at revocation of a will, in purported revival of an earlier will, was held not to have been lawfully effective or valid and, on the application of the executors, a grant of probate for the earlier will was revoked and the later will was admitted to probate, although it was acknowledged that this would not have represented the Testator’s final (but not properly expressed) wishes.

There is no presumption of duress or undue influence arising from special relationships in relation to wills: Lambert v Lyons [2010] IEHC 29 was a case in which the plaintiffs claimed an order striking down a codicil on the basis that it was extracted under duress and undue influence and there was a discussion of the authorities and texts at pp.136-9, culminating in the conclusion that in the case of undue influence in the context of wills, the burden of proof is on the plaintiffs.

In O’Connor v Markey [2007] 2 IR 194 the court affirmed that the rule of practice re costs established by In Bonis Morelli is confined to proceedings concerning the validity of wills and does not apply to all litigation or suits in connection with the administration of an estate. (See also s168-169 of LSRA 2015.)

Flannery v Flannery [2009] IEHC 317 affirmed the test as set out in Banks v Goodfellow (1870) L.R. 5 Q.B. 549 for whether a testator was of sound disposing mind when making or purporting to make a will, namely whether the person understood (a) the nature of the act of making a will and its effects, and (b) the extent of the property of which he was disposing, and was able to comprehend and appreciate the claims to which he ought to give effect.