Some parents making wills ‘are not shy in expressing who their favourite child is’

Daughters fare better in wills now than they once did, probate lawyers say. Some, however, still end up in court arguing they did not get their fair share of a parent’s estate. Sons who spend their lives working on family farms usually end up with them, but that situation, too, can trigger a bitter disputes.

Those observations from experienced lawyers have been borne out in several cases before the High Court, including one last August where a woman got orders with a view to possibly challenging her father’s will. It left some €3 million of his €3.5 million estate, including the family farm, to her brother, who owns a business, and about €500,000 to her.

In another case last November, the Supreme Court finally halted a woman’s unsuccessful seven-year legal battle with two older siblings over her allegedly not getting a full quarter share of their father’s estate, valued at about €308,000, after he died intestate 36 years ago.

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While it was agreed, the woman claimed, within the family that their father would have wished for her brother, who had been running the farm for some years, to get it, she was assured she would have full access to the family home but had felt increasingly unwelcome there in later years. The siblings denied her claims.

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In a different case, a man who believes he was born in a mother and baby home was awarded €225,000 against the estate of his estranged birth mother who had not included him, her only child, in her will after Ms Justice Siobhán Stack declared, under section 117 of the Succession Act, his mother failed to provide for him.

Section 117 provides a child, including an adult, can seek a court declaration stating that a deceased parent failed in their “moral duty” to make proper provision for them in accordance with their means. If a court agrees, it can order such provision out of the estate at a level it considers to be just.

In 2017, the Law Reform Commission recommended the removal of the words “failed in his moral duty” on grounds that it may emphasise an expectation of a sense of entitlement to inherit. According to the commission, section 117 should be based on a “need for” provision.

The commission said it should be presumed in law that when a child with no disability turns 18 (or 23 if in full-time education), and who had been provided for by their parents as best they could within their means, the parents had discharged their moral duty and made proper provision for them.

It recommended three exceptions to that presumption for adult children with a particular need due to health issues or capacity; who have provided care and support to the deceased parents; and where the estate consists of an item of particular sentimental value to the applicant. The recommendations have not been implemented to date.

[ If you’re over 18 and have any assets, you should make a will. Here’s what you need to know ]

Senior counsel Vinóg Faughnan, a probate law expert, says the number of disputes over wills that end up in litigation is “minuscule” but, notwithstanding how a lawyer advises a client, some people still want a judge to decide.

“The death of a parent, particularly the death of the last parent, can cause long-held, but dormant, differences between siblings to reawaken and lead to litigation,” he says.

Faughnan, who worked for many years in the probate office before pursuing a career at the Bar, has seen a shift in attitudes when it comes to making wills.

“We had a very strong patriarchal system in the distribution of estates, but things have definitely improved,” he adds. “There is more equal treatment of women. I think parents have moved on, there is more equality in the treatment of their children now.”

There are exceptions, he says, probably more so when there is an agricultural background to the estate. He has seen many cases where a son who stayed and worked on the family farm was left it, resulting in an unequal distribution of the parents’ assets between their children.

“Parents generally have freedom to do as they wish when it comes to their estate, there is not an obligation to achieve equality of distribution between their children,” he says. “If a son or daughter has given up other opportunities to stay at home and work the family farm, and their siblings have pursued education and other careers, an equal division of the sale proceeds could amount to a failure in the moral duty to the child who worked all their life on the farm.”

Daughters sometimes do better under a will than sons, he adds. He has seen situations where daughters who committed to the family business, sometimes giving up educational opportunities, were left more valuable shareholdings than their uninvolved brothers.

People can be arbitrary or capricious when making wills. They may have a favourite child or have had a falling out with a child

—  Senior counsel Michael Hourican

While his experience is that wills tend to be more equal now, Faughnan says very often a son or sons may be working in the family business or farming alongside the parent, so the farm or business may be bequeathed to them. This often results in few other assets being left to make provision for daughters.

“A testator may leave the business to the son working in the business subject to and charged with the payment of a certain sum to the daughter. This can create friction, in that the son will say he does not have the means to discharge same, while the daughter will say it is not enough.”

Senior counsel Michael Hourican says his experience is that wills made in urban settings tend to provide for greater equality between adult children. Daughters are more likely to be caring for an ageing parent and, he says, it “makes perfect sense” that they are more likely to be favoured in their wills.

Outside urban settings, when land is involved, Hourican says he has seen a lot of favouritism towards sons in wills. “Nothing much has changed,” he adds. “Testators are often motivated to ensure the land remains in the family name, and in one holding, and that often means the land goes to the son farming the land.”

This, in many cases, leaves no significant assets for other siblings, including unmarried daughters who have cared for the parents.

Section 117 claims are pursued in a small number of such cases, but can present dilemmas for the court, with the son arguing the farm will be unviable if divided or may have to be sold to meet any orders in favour of the daughter, Hourican notes.

He is often asked why testators cannot do as they want with their land or assets and responds that section 117 represents the Oireachtas’ view that absolute testatory freedom can lead to “completely unfair outcomes”, with many countries having similar laws.

“People can be arbitrary or capricious when making wills. They may have a favourite child or have had a falling out with a child,” says Hourican. “I had a case some years ago where a father who brutalised all his children left nothing to them and everything to a niece. The children got it all in the end. There are cases that just cry out for the intervention of the court.”

No child, whether they be five or 55, wants to be left out

—  An experienced probate solicitor

According to an experienced probate solicitor, who asked not to be identified, some people making wills “are not shy in expressing who their favourite child is, son or daughter”.

“These are the wills wherein we as solicitors take really careful attendance notes as we have a hunch that they could be contested down the line. No child, whether they be five or 55, wants to be left out.”

According to the Probate Bar Association, a group of lawyers specialising in probate and succession law, section 117 should be extended to permit children, including adult children, to bring cases over provision even where a parent died without making a will.

Faughnan, a founder and first chairperson of the association, believes a lot of disputes might be avoided if parents discussed their wills with their children, but says this is not always possible.

“Mediation is particularly relevant to probate cases,” he says. “It means significant savings in costs for the family and the collective experience of probate lawyers is that there is a better chance of reconciliation between the family following a successful mediation.”

The chances of a reconciliation after a court case decrease, he says. “What is said in the witness box cannot be unsaid and often lays the foundation for future family disharmony. Court should be avoided at all costs.”

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