Farm Ireland
Independent.ie

Saturday 18 November 2017

How to challenge an unjust will

If you are considering making a will you should discuss the matter with family members as well as getting legal advice
If you are considering making a will you should discuss the matter with family members as well as getting legal advice

Theresa Murphy

Q My question is a little sad in that it involves difficulties within my family which we cannot resolve. As the only son of my parents I farmed along with my father for almost 30 years and my siblings had little or no input into the farm. I always thought that I would inherit the farm and have worked on that basis since I left school. After a recent argument between family members, I was upset to learn that my parents have now changed the terms of their will to effectively exclude me. Is there anything I can do because I risk losing my livelihood if anything were to happen to them.

A: The difficulties around succession and estate planning are very sensitive for many farm families in Ireland. Most of us are aware of at least one situation which has resulted in legal action as a result of a will which has left relatives unhappy. For this reason, I cannot recommend strongly enough that if you are considering making a will you should discuss the matter with family members as well as getting legal advice from a professional both on the making of the will and also on the tax implications for those who will inherit under the will.

I have previously looked at the possibility of legally challenging the reversal of a promise, for example, when a parent has promised a child that if they work on the farm without receiving an income that they will one day inherit the farm and then decide to break this promise after a number of years.

This is called proprietary estoppel and you should seek legal advice if you think that it concerns you.

Many people learn, sometimes after the death of a loved one, that their will does not meet with their expectations and they feel that they have not been properly provided for.

An Unfair Will

A child that feels that they have been unfairly treated by his/her parent under the terms of the will can bring legal proceedings to challenge the terms.

The test that the judge will apply in deciding whether or not a child should succeed in having the terms of the will changed is whether the testator (that is the person who has made the will and is deceased) has failed in their moral duty to make proper provision for the child in question.

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It should be noted that if one parent leaves the entirety of their estate to their remaining spouse, the child will have no grounds to challenge the will until after the death of the remaining spouse.

However, if the remaining spouse is not the mother of the child who wishes to challenge the will, the challenge to the will can be made straight away.

The purpose of this right to challenge a will is to protect children who might reasonably expect support from their parents.

What the court takes into account

For this reason, the court will take into account factors like whether or not the child has received an expensive education or is wealthy in their own right, when deciding whether or not the terms of the will should be changed to make provision for the child in question.

One of the special circumstances which is recognised by the courts is where a child was allowed to believe that they would inherit the family farm and so has moulded their life and training as a result of this belief/promise by the parent.

You should bear in mind that other children will inevitably have to considered and factors like whether or not a sibling has additional needs/suffers from an illness/is infirm will have to be taken into account by the court because the deceased parent will also have a duty to make provision for that child.

Time limits

If you are considering making an application of this sort to the high court or circuit court (depending on the value of the assets in the will) it is done under S117 of the Succession Act 1965.

You should bear in mind that the time limit for making this type of application is very short and is six months from the date of taking out representation/probate of the deceased's estate (this is the date the District Probate Registry certify that the will is valid and that all legal, financial and tax matters are in order so that the executor or administrator can be allowed to get on with the job of distributing the estate).

If you are considering bringing this type of action, your solicitor should lodge a 'caveat' in the probate office which will bring your concerns to the attention of the solicitor acting for the estate.

The right to challenge a will on the basis that proper provision has not been made for a child is not an absolute right.

However, in the case of a child who has been led to believe that they will inherit the farm and has worked for a long period of time on the farm and moulded their life as a result, you should certainly consider whether your parents' will meets these standards.

Any such challenge would be made after, in this case, your father's death.

The best advice is to try to sort out this issue before he dies in the hope of preventing potentially lengthy and costly legal proceedings and possibly further family difficulties.

Theresa Murphy is a barrister based in Ardrahan, Co Galway

Indo Farming