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Q&A: 'I am homeless but my brother was left my mother's house. Can I challenge her will?'

Legal route rarely a good first step but relations here seem beyond repair

Shall I challenge the will? Photograph: Getty Images

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Dominic Coyle
Sun Nov 14 2021 - 12:30

My mum died a few years ago. She was predeceased by my father. He was a farmer and she worked in healthcare. They had several children, mostly successful and with their own homes. However, I became homeless back in 2013 at a time when I had returned to university as a mature student.

My mother was in a difficult position in finalising her will as one of my brothers was obstructive and frustrating her at every angle.

Given the volatile relationships within the family, she feared some of my siblings would not be happy if she left me the house. On her deathbed, she told me she was sorry about the house and she asked this same brother to look after me.

I had been living with her in 2013 when I went back to college to complete a full-time postgraduate course. As I was means assessed against income including hers, despite being in my late 30s, I did not get a grant. My mother paid for the rent of an apartment close to college until she was pressured to stop.

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Unfortunately, I hit great challenges throughout this course of studies, much of it arising from a lack of support from my family, and ended up in a treatment centre. At the end of this, I had nowhere to go and was assessed as homeless.

I was put into private rented accommodation but after an attack a few years later, I could not return and was sleeping on the streets. I am still living in hostel accommodation.

My mum’s will was drafted over a decade before she died. She had transferred lands to my brothers and was sorting us out in steps of stairs. Her will states that all her unmarried children have a right of residency at her home. However, she willed the home to the brother who is also executor of her will.

I did return home briefly some time after she died but it was quickly clear I was not welcome. I cannot even enjoy my right of residency.

My mum's probate was granted in June. I have until next month to challenge under the 1965 (section 117) Succession Act. Shall I challenge the will? I am eligible for FLAC (Free Legal Advice Centre) but is it true that if I lose the case, I will have to pay out of the estate?

Ms G O’D email

Yours is a shockingly sad story of a family that was clearly fractured even before your mother died. Your letter is confusing and missing a lot of important relevant detail, although it paints a clear picture of your own obvious distress and the very difficult personal situation you find yourself in.

I have included only very brief elements of your letter as sections of it are very personal and not strictly relevant to your query of me.

Your basic query is simple. Should you contest the will?

The first thing to say is that contesting wills is rarely a good first option. It is an expensive and potentially bitter exercise. Many judges will strongly advise parties to consider mediation to avoid the potential for lasting family rupture and costs that can dramatically eat into the estate the parties are fighting over.

However, from what you say, the moment for preserving family harmony has long passed. By your account, any relationship you had with this brother at least, and possibly others, was sundered in 2013 and actions in the intervening years have only suggested there will be no reconciliation by mutual agreement.

Although a recurring theme of your letter is your brother not respecting your mother’s wishes in arranging her affairs or after her death, much of this is hearsay so you are unlikely to succeed in a case for oppression of your mother in the making of the will.

From what you say, I agree that the best potential course of claim is likely to be under section 117 of the Succession Act 1965. This covers applications by a child that the person who has died has "failed in their moral duty to make proper provision for the child in accordance with their means, whether in their will or otherwise". In other words, considering your financial and other personal circumstances, better provision should have been made for you in the will.

In such cases, the section says, “the court may order that such provision shall be made for the child out of the estate as the court thinks just”. In doing so, the court will examine the issue from “the point of view of a prudent and just parent”, taking into account your circumstances and that of your siblings.

Given your somewhat dire circumstances and what you say is the relative comfort of your siblings, it certainly sounds like a reasonably arguable case . . . but I am no lawyer.

Who pays? That will be up to a judge if it goes to court but, in general, all reasonable legal costs of a reasonable challenge – whether successful or not – will come out of the estate itself. That means there will likely be less in the will for everyone in the family who were to benefit from it.

It it is not a case of you paying . . . unless the judge decides it was a case that should not have been taken, or one that is frivolous. But that strikes me as most unlikely on the basis of the position you present – whether you win or lose.

But before you get to a judge's ruling on who is paying the legal bills, you will need legal representation yourself. You say you are eligible for support from the Free Legal Advice Centre, but does this include commitment that they will fight a civil court action on your behalf? If so, fine but otherwise you will need to organise legal representation and that will require funding if you are to proceed.

Finally, I think you are correct that there is a deadline for legal claim under section 117 of six months from the date probate has been granted. The original legislation allowed for 12 months but, according to the Law Reform Commission, this was brought back to six months by the Family Law (Divorce) Act 1996.

In your case that means moving to lodge legal papers within the next five weeks. If you are going to act, the clock is ticking.

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street, Dublin 2, or email dcoyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice. No personal correspondence will be entered into

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