Q My husband is in a nursing home after suffering two strokes in succession a few years ago. While his health has not deteriorated too much in that time, he will be 80 next month and the nursing home he's in has had a few cases of Covid-19.
We had a dairy farm and it kept us comfortable down the years and helped us put our two sons through college. The farm is now rented out to a local dairy farmer, who pays his bills on time; it's a great income for me as it helps pay the nursing home bills.
We had a lovely couple of years before my husband got sick, and when our accountant advised us years ago to create a will, we did. We thought it would be great to do some future planning in case something happened one of us.
I'd sell the farm to ensure my husband is looked after properly - but I'm not sure I have that choice any more. One of my sons is difficult. There I said it. And he's only getting more difficult. Our will is set out that should myself or my husband pass away, the farm and house would be divided three ways with our two sons.
We had no doubts that myself, or himself would be staying on in the house for as long as we needed it, but that's not stated in our will.
Now I'm worried that if my husband passes away because of Covid-19, will my 'difficult' son have the power to make us sell the farm and even the house to get his share?
A A number of issues arise here, but most importantly, you should contact your solicitor and check the title of your property, the precise terms of your will and, if necessary, make a new will to protect your and your husband's position.
Your husband could also make a new will, provided he has the mental capacity to do so. In the current global pandemic, solicitors are permitted to carry out legal services necessary to support the vulnerable.
The Succession Act sets out specific rules for the execution of wills, and we as a profession, like many other businesses, have adapted to ensure we can provide such essential services, like wills, for our vulnerable clients, while still adhering to the legislation.
You say the farm is rented out to a local dairy farmer and I assume you have a written lease. You should ask your solicitor to check the terms of this lease, for example, the duration and whether it binds your and your husband's successors and assigns, which means those who will own the property after you.
Your query says your will leaves the farm and house to be divided in three ways should you or your husband pass away. It seems to suggest that you (or your husband) would get the house, while the farm would be left to your two sons.
You suggest there is no right of residence in favour of you or your husband mentioned in your will. Your say "our will" but you should have a will each, not just one for both of you so I am assuming you have indeed signed a will each.
It is important to ascertain whether the house and farm are in the joint names of you and your husband. If they are and you hold the property as joint tenants, then no matter what your husband's will says, you will automatically become the sole owner of both the house and farm upon his death. A joint tenancy means that on the death of one owner, the property will automatically fall to the survivor of them.
Your solicitor can check the title of your property and confirm this position for you. This could give you some peace of mind.
If the property is in your husband's sole name and he passes away first, then you should be aware that you, as a spouse, have a legal right share in your husband's estate, and he in yours (should you pass away first).
This means that despite what his will says, you as the spouse (provided you have not renounced your rights), are entitled to one third of his estate.
Valuations would have to be obtained and calculations carried out to see what your legal right share would be and what parts of the estate you could claim to satisfy it, and your solicitor would facilitate you with that.
Your solicitor could also look at your will to see how the bequest of the property (house and farm) was left to the three of you, whether as joint tenants or tenants in common (where each of you owns a distinct share of the property, and that share would be specified).
No doubt your solicitor will advise you that your children do not have a legal right to inherit from your estate.
You should explain the situation surrounding your 'difficult' son to your solicitor and they will then be better placed to advise you on how to protect your, and your husband's, income stream.
The protection of vulnerable clients is paramount.
Deirdre Flynn is from a farming background and practices as a solicitor at Deirdre Flynn Solicitors, 4 Ivy Terrace, Tralee, Co Kerry
The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information provided, Deirdre Flynn does not accept responsibility for errors or omissions howsoever arising. You should seek legal advice in relation to your particular circumstances at the earliest possible time.