Will Dad’s letter gifting me land be valid if contrary to his will?

I am one of seven. My father made a will in September 2019 leaving the family home and land to my brothers and any money after expenses to be divided between all seven.

Since then he has given me a letter gifting me a small portion of the land as I looked after my mother until her death last year.

Is this written note adequate for will purposes or does it have to be an addition to the actual will?

Ms S.P., email

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The Irish are great for keeping things simple and informal. But they can get themselves into a world of trouble inadvertently with this approach, all the more so when it involves something with potential for conflict like inheritance.

Mix this with the Irish obsession with land and you have the recipe for family fracture and endless legal bills.

Your father has sensibly made a will and, from the sounds of it, he has been very transparent with all seven children about the terms of that document. That means your brothers have a clear understanding that they will inherit the family home and all the land in the estate.

Since then, he has not unreasonably decided to recognise your care for your mother in her last days. So far, so good. The issue comes with the manner in which he has done so.

Simply giving you a letter granting you ownership to a portion of the land would, on any reasonable interpretation, be at odds with his previously and formally expressed wishes that the land all go to your brothers. Even in the closest of families this can cause a row.

Challenge

If the gift is to come to you on your father’s death, it is quite likely to be challenged by one or more of your brothers. If it comes to court, they will consider your letter alongside other evidence but there is no guarantee that the court would order the letter be honoured.

And, in any case, the costs of the contesting the case will eat into the estate, leaving everyone worse off than they might otherwise be.

The sensible thing, it seems to me, is that your father draw up a codicil to his will to give effect to this wish of his that you get a portion of the land. A codicil has legal force and is essentially a document amending an existing will. It can change part of the will. It can also introduce a new additional bequest or delete one that appears in the will.

In general, solicitors will advise that codicils should only be used when the changes are limited in number or minor. Where there are wholesale changes to a will already in existence, it makes more sense to draw up a new will.

Most importantly, the codicil needs to be witnessed in the same way as the will was, so an informal letter from your father to you would not fit the requirements.The witnesses do not have to be the same people who witnessed the original will but they can be.

False economy

One of the reasons people opt for the informal approach taken by your father is the reluctance to countenance additional legal fees. However, this can be a false economy. In the event of dispute, the phrasing of a will – and any codicil – would be closely examined in court. Something that might seem clear to you and your father might not appear so certain under such examination. And the price of a legal consultation for a codicil would suddenly seem like a very reasonable costs.

For instance, does the letter indicate precisely what size portion of land and its precise position within the estate?

I would suggest any codicil should be drawn up with a solicitor.

Finally, your wording in the question states: “he has given me a letter gifting me a small portion of the land”. It could just be the choice of words but “gifting” would indicate that he is giving you this land while still alive.

If so, it should not affect the will or require a codicil, but the full legal transfer of the land should be completed as soon as possible to ensure it is complete while he is still alive. Otherwise, you are going to run into those significant potential issues with the conflict between the letter and the terms of the current will.

[ dcoyle@irishtimes.com ]