Farm Ireland

Wednesday 21 February 2018

Avoid the elephant in the room by taking time to get your will right

Family matters: Taking that extra time when writing a will can help to prevent additional stress and heartache for the rest of the family, while Succession Ireland’s Clare O’Keeffe recommends discussing your will with your family first to make the process easier for everyone.
Family matters: Taking that extra time when writing a will can help to prevent additional stress and heartache for the rest of the family, while Succession Ireland’s Clare O’Keeffe recommends discussing your will with your family first to make the process easier for everyone.
Caitriona Murphy

Caitriona Murphy

So far in this special series on wills and inheritance, we have highlighted how wills can and do lead to families fighting on the steps of the High Court.

In part three, we look at the ways in which families can prevent the confusion, anger and heartache that are caused by badly written and ill-thought out wills.

Solicitor Paul Pierse, who also lectures in law at Griffith College in Cork, says a stitch in time could save not only proverbial nine but also avoid the prospect of litigation and family breakdown.

"Waiting to deal with the issue of family succession can lead to the topic becoming thorny and divisive," he told the Farming Independent.

"If you are interested in family harmony, do not wait for a time of crisis to address the issue of succession. Take the time to give it appropriate consideration and communication, but do it sooner rather than later, or the elephant in the room will grow."

In a farming context, there may be economic as well as social reasons for applying thought to the issue of your will as early as possible, the solicitor said.


"There are often tax efficient alternatives to leaving everything in one's will; alternatives such as the annual €3,000 tax-free small gift exemption, or placing property in joint names," he explained.

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"With inheritance tax at 33pc and thresholds falling, it is worth informing oneself of the alternatives."

The solicitor added that, when making a will, the law will not necessarily allow you to have it all your own way. As highlighted earlier in this series, there are a number of rules in succession law that restrict the right of somebody to do whatever they want with their assets in their will.

For example, a spouse is entitled to a minimum one-third share of the estate and a separated spouse may be entitled to a certain percentage of their former partner's assets, even if there is a separation agreement in place.

Parents must be aware of fulfilling their 'moral duty' to each child and the dangers of breaking promises that were made prior to death, as highlighted in the Naylor v Maher High Court case must be borne in mind.

"Finally, beware that 'illegitimate' children have the same rights as any other and do not expect them to remain in the woodwork after you are gone," warned the solicitor.

Mr Pierse advises everyone to choose the executors of their will carefully.

"Generally, it is advisable they be a diplomatic, sensible and rational family member. It can be an onerous job, so it is useful to inform them in advance, just to check that they would be willing to do it," he said.

The solicitor is one of a growing number of legal professionals who are embracing the concept of mediation as a route to avoiding potential conflict within families.


"The contents of one's will involves massive decisions that will have a profound effect on the lives of others," he said.

"So it makes a lot of sense to take the views of those likely to be impacted into account.

"Mediation levels the communication playing field and allows both strong and gentle characters to have their underlying interests heard and understood in a way that is difficult to achieve in any other forum," he added.

"I see a huge place in the Irish farming family for a mediated discussion on the subject of succession," the solicitor maintained.

"I would suggest getting your affairs in order before having such a discussion, in order to best avail of the facilitation."

Clare O'Keeffe from Succession Ireland believes communication within families is the key to avoiding potential trouble.

"Traditionally, a large number of people would write a will that would have all assets going to their surviving spouse, but this is now changing," she said.

"We find that a lot of people don't want to be left making big decisions about how to distribute their assets on their own.

"A will that left everything to the husband or wife may be fine when it's just the two of them in the family, but as children are born and the family grows up, they will need to change their will and it can take a lot of time to tease out the best solution for everyone," Ms O'Keeffe explained.

"Equal division of the assets between all the children might work in one family, but it could be a disaster for another family with a farm or business."

The Succession Ireland mediators regularly deal with wills and asset distribution and Ms O'Keeffe insisted that frank family discussions can reveal some surprising information for all involved.

"I always ask the parent what they want to do in their will and then ask what their children will think about that plan and I almost always get the answer 'I don't know, I haven't asked them'," she said.


"In Ireland, we tend to shy away from talking about these things until we are forced to or it is too late."

Where a family engages the services of a mediator to help discuss and plan for farm success, the usual format is for the mediator to meet with the asset owner first, then the individual children, followed by a full family meeting.

"That way, any emotion can be aired first to us in our role as non-judgemental and impartial mediators, paving the way for a constructive family discussion," she explained.

While the idea of formal meetings with mediators may appear to be daunting, Ms O'Keeffe maintained it was an extremely effective way to make sure everyone is heard.

And it's not about everyone fighting over the farm either - it can be about small details that would ensure family harmony following the death of a loved one.

Earlier in this series, senior counsel Vinog Faughnan pointed out that small details can lead to emotional hurt that grows into bitterness and sometimes finishes in the courts.

Some people are hurt by not being mentioned in a will or feel they should have been acknowledged in some special way.


Family discussions can help with exploring how each member of the family would like to be treated in the event of a parent passing away.

"Some children would like to receive something that has a particular emotional attachment for them," explained Ms O'Keeffe.

"They could say they are financially secure but would really love to get the old piano stool from their childhood home. It could be an old piece of crockery, a clock, a grandmother's ring or something else with a sentimental value from their childhood.

"As long as I've been mediating, I've never had two people ask for the same thing," she added.

"Unless the family talk about these things, the parents may never know how much something might mean to one of the family."

Once a family has openly discussed what should happen when a loved one passes away, the next step is to go to the solicitor with a plan that will be legally enforceable in the event of death.

The Citizens Information Board has lots of information, including a guide to the legal and financial aspects of what happens when someone dies in Ireland, on its website

Irish Independent