Before he went to live abroad with his daughter, a friend told me that he was leaving €5 million to his son and a house in Dublin valued at €1.2 million to the daughter
At that time he had been living with his son for several years after his wife died. He did not give him any money towards his keep.
He did return to Ireland on one occasion for a family wedding but went back to his daughter’s home abroad for the “warm weather”. He also took all his money with him. According to his daughter, he bought two houses over there.
When he died more than 10 years ago in his 90s, it emerged that he had changed his will when he moved abroad. In his second will, his son, who is since recently deceased, received only €5,000 from the will. His sister got the rest.
I had known this man for more than 40 years. I have no reason to question the statement that in his original will he was leaving so much money to his son. (I knew he was a wealthy man).
After this man died the son did not want to challenge the second will but it was a source of great stress to him and his family while he was alive.
My questions are:
1. Can his family claim part of this will as of right?
2. How do they seek a copy of this second will?
P.McG.
Families and wills can obviously be very touchy subjects. Clearly, it is up to every person to make up their own mind to whom they wish to leave their assets. And it is always possible that they will change their minds.
But when there are such significant changes in a person’s intentions at a time when they are more intensely focused on one family member, it can always leave a suspicion of undue influence – even where there is none.
And that can be toxic for family relationships because, in most cases, families are loathe to come out and say what they think for obvious reasons – even aside from the fact that it could be entirely incorrect. But they can dwell on it, as appears to have happened in the case of this man’s son, at least from how you recall it.
This man died in his 90s. You do not say what his health was like in his final years, most particularly his mental health. But if he was increasingly dependent on his daughter, it is not unthinkable that he might have felt gratitude and formed a view that she should benefit disproportionately in his will as a result.
Quite possibly, as during his time with his son, he may not have been contributing to his living costs during his time with her and may have been acutely conscious he was a burden.
The same thinking might explain why, when he had been living with the son, he had chosen to benefit him disproportionately in his will.
There is an old Irish expression: Ní bhíonn cuimhne ar an arán a itear, which you may be more familiar from the English translation – “eaten bread is soon forgotten”.
But we will never know. All of this is speculation and of no use to this gentleman, his children – one of whom is now himself dead anyway – or their families.
But what about the specific questions?
Can family claim part of a will, as of right? And how can someone get to see the final will – the second will you mention, though of course he may have had a great many wills down his 90+ years, especially as a man of wealth?
In general, no, family cannot claim a portion of an estate as of right, regardless of the terms of a person’s will.
There is provision for a spouse’s legal right share, which is enshrined in section 111 of the Succession Act 1965. This amounts to half the estate where there are no children and a third where there are children. But that presupposes the spouse survives the person making the will and, in this case, your friend’s spouse predeceased him.
No one else has a specifically provided-for legal right share. In fact, there is no real onus on a person to provide for their adult children at all, presuming they have nurtured and provided for their education to a point where they are able to enter the world of work.
There is, however, potential for a child to challenge the lack of provision for them in a parent’s will. These are called section 117 cases after the section of the Succession Act providing for them. The child needs to show that the parent failed in their “moral duty” to make proper provision for the child in the will, “in accordance with their means”.
These cases are not unknown but they are not slam-dunk actions. The court will consider the age, financial wellbeing and other circumstances of the now adult child and any siblings, and their relations with the parent, among other things. The court has very wide discretion in these cases.
Anyway, it is a moot point in your case as such claims must be made within six months of probate, which, given this estate has long been settled, I am confident has long since passed.
Outside of that specific provision for an action by a child, it is possible to challenge a will under certain other grounds.
Generally, these would claim one of the following:
– that the will itself is not valid for some reason, because it was drawn up incorrectly or the person was not of sound mind at the time;
– that the wording of the will makes it unclear what was intended for some or all of the assets;
– that the will was drawn up under duress or undue influence.
It is also possible to argue on grounds of expectation – that the person challenging had been given to understand they would inherit something but did not do so under the final will.
All of these are very complex cases where evidence may be thin on the ground, so it is very rare that any would come with a strong expectation of success. But there is case law in Ireland showing that each has been successfully used in the past. However, given that this gentleman has been dead for more than 10 years and the allegedly deprived son is now himself dead, no challenge would be entertained at this juncture by a court.
Of course, all this assumes the will was drawn up in Ireland and under Irish law. If he was living outside this country for his final years, it may be that the will was drawn up in another jurisdiction, in which case the rules for challenging it might be quite different. But all will have time limits and I cannot recall ever coming across a state where you could go about challenging a will a decade or so after probate.
[ My husband says it’s pointless for him to make a will. Is he right?Opens in new window ]
For what it is worth, as a rule, if a person has physical assets in a country, such as a property, maybe a holiday home, they will normally be advised to have a will in that country to ensure the property does not get ensnared by local inheritance laws.
In relation to viewing the will, assuming it is an Irish will, you can apply to see a copy any time after probate has been issued. All wills since 1992 are available for ordering (after probate) by any member of the public on the courts website.
You will need a “record number” and this can be found by inputting the person’s name and the year they died at another web page. It doesn’t need all of first name, surname and year of death to throw up results but the more accurate the information you feed it, the more likely you will get to the relevant file quickly.
The record number will identify, among other tings, the probate office that dealt with the will, allowing an application to be made for a copy of the will, which will come at a nominal cost.
Again, if the final will was drawn up elsewhere, you will have to check the procedures in that country, though in relation to the country you mention but which I have edited out for reasons of privacy, they appear to be broadly the same.
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