An acquaintance left all his assets, mainly his house which is probably worth about €250,000, to a distant relative. He had been on bad terms with his wife of about 50 years and left her nothing.
They had no children and were not legally separated or divorced. Their only income was the contributory old-age pension.
Now the relative has told the widow that he wants to take possession of the house to sell it and pay capital acquisitions tax. He has helpfully suggested that she should enter a care home.
I know that, by law, the lady is entitled to two-thirds of the value of the house, irrespective of the will but, assuming that the facts are as I’ve given them: can the will even go to probate? Can the widow continue to live in the house indefinitely given her contribution to the marriage or for some other reason?
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Did the solicitor who drew up the will have an ethical or legal obligation to ask if the man was married? When I made a will recently, the solicitor didn’t ask me if I was married.
Mr DF
Well, this is a bit of a mess, isn’t it? There’s being on bad terms with a spouse, and then there’s trying to cut her out of a will entirely after 50 years of marriage. It must have been some row.
The approach of the distant relative to whom the house has been left in the will is also sadly lacking in empathy. What a wonderful pair. There’s nothing like a will to show up the worst side of people.
More to the point, this will is unsustainable. You simply cannot disinherit a spouse entirely – at least not unless they have been convicted of killing you, trying to kill you or trying to cause you serious harm.
If you die without a will, your spouse will automatically inherit your entire estate where there are no children and two-thirds of the estate (by value) where there are children.
And in a case like this, where there is a will, a spouse is entitled to what is called a legal right share. That lays down that the spouse is automatically entitled to one-half of the entire estate in a situation like your acquaintance’s wife where there are no children. If there had been children, the legal right share would be one-third of the estate.
This entitlement ranks ahead of any other beneficiary, regardless of what the will says. Only creditors rank higher – ie, debts left outstanding by the deceased.
If she was deliberately left in the dark, I would expect any court to back her right
So whatever this distant relative thinks, in an estate where the sole or main asset is the family home, the relative has no absolute right to it until the wife has her share.
And the onus is not on the spouse to claim this. It is the legal responsibility of the executor to the estate to notify the spouse that she has the right to half of the estate (in this example), regardless of what the will says.
Having said that, they do need to claim the right within six months of being informed by the executor, or one year of the grant of representation (probate) being issued. If she was deliberately left in the dark, I would expect any court to back her right.
If they had been legally separated, provision would likely have been made one way or the other in the formal separation for the handling of the legal right share. That’s common enough. Divorce would have extinguished it. But neither is the case here.
It is also possible for someone to renounce a legal right share but, again, that is a formal scenario and there would be a written record. And if the spouse argues that they were pressured into so doing, or simply did not understand what they were doing, they would be in a strong position to challenge such a renunciation in court.
So the idea that a distant relative can wander in and tell her “Sorry love, I want you out to sell the house. Maybe you can head on to a nursing home” is quite simply deluded. They have no such right.
And even in a case like this, where it appears the wife’s name is not on the deeds of the property and her legal right share will not be sufficient to secure ownership of the house in its entirety, she is not without options.
The first course of action would be to pay the difference between the value of her right share and the balance of the market value of the house.
In your scenario, where it appears she would not have the financial resources to do so, she could make a case to a court on hardship grounds. The court can rule in those circumstance that the money does not have to be paid, although it is not obliged to do so.
Whatever this distant relative thinks, in an estate where the sole or main asset is the family home, the relative has no absolute right to it until the wife has her share
Has the solicitor drawing up the will on behalf of his client the moral or legal duty to inquire whether there is a spouse, and then to notify the client of the legal right share provision? No, not a legal or moral duty, but they certainly have a commonsense one.
I cannot imagine a solicitor advising a mature client on their will where no mention is made of a spouse not at least querying whether there are any close family, given they would certainly be aware of the legal right share provision.
After all, failure to do so and to make provision is only storing up trouble for the executor, who may well be the same solicitor, when they have to manage probate and the distribution of the estate.
Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to dominic.coyle@irishtimes.com with a contact phone number. This column is a reader service and is not intended to replace professional advice
