Can you advise me on the longevity of a will?
My mother made a will back in the mid-1960s before she passed away in 1972 and in it, she left the house she lived in after my father died and in which all of us four children were reared.
Two of my sisters emigrated, one to the US and one to the UK. I married locally, as did my brother, who was left the family farm. The house and a small few acres was left to the three girls — myself and my two sisters.
We live in the south-east of the country and the value of the house — it’s probably termed a cottage — has gone up in value significantly in recent years as it’s not too far from the sea and is in a lovely locality, just two miles from the local village.
But I think we’ve made a big mistake. After our mother died and we all knew the contents of the will and were happy with it, we left the house idle for a few years. We were all happy for my two sisters to come back on holidays and have somewhere to stay when they were home for sometimes months at a time. Both have families and it was lovely to have the home occupied with children and family.
It was also good that we didn’t have to sell it as I don’t think any of us would have had the money to buy the others out, not even then, never mind now when it’s value is well up. And there was no need — everything was good.
However, one of my sisters and her family began to spend more and more time in the house. It was the kind of situation that just developed. She was living in the US and would come home with the children for a couple of weeks and then a couple of months as it made more sense.
Then she went through a separation from her husband and moved back into the house with her children on a full-time basis in the early 1980s. I’m not sure of the year it’s so long now, but she stayed living there until she passed away about 10 years ago.
She had been unwell for a few years and one of her sons was living with her, maybe for about the last two years and stayed on in the house. He had some problems and I suppose we felt sorry for him, but it was clear the house was going to rack and ruin.
He too died in the past year and his brother is making a claim on the house on the basis of squatter’s rights.
Does the will, which left the house and a few acres to the three of us, not still stand?
I am sorry to hear you find yourself in this situation. Unfortunately, often, when it comes to family, legal matters can be left unresolved, which can create further complications for all concerned.
In your situation, your mother passed away in 1972 having a made a will some six/seven years earlier. She left your childhood home to you and your two sisters. It was left idle for a few years and then your sisters started staying in the property when they came home to visit.
This ultimately resulted in your sister and her children moving into the property permanently some 30 years ago. Your nephew is now claiming ‘squatter’s rights’ in the property.
For readers, ‘squatter’s rights’ is the informal term granted to ‘adverse possession’. Adverse Possession is where a person is in exclusive occupation of another’s property continuously for 12 years without acknowledging the true and legal owner of the property. This means they must use the property as if it were their own.
In order to claim adverse possession, the person ‘squatting’ must have ‘animus possidendi’, which is the intention to possess the property and exclude the true owner.
Many people think of ‘squatter’s rights’ as where someone encroaches on to unused land and then seek to claim it for their own. This is true in some situations, but there are many instances in Ireland where a claim of squatter’s rights is made because land/property was not transferred from generation to generation, but rather the next generation just started farming/using the property and no one objected.
It can often be 50-plus years later before anyone discovers they are not in fact the registered owner of their property.
In this instance, your mother died in 1972 and your sister moved into the property full time in the 80s. You do not say who insured and maintained the house from the time your mother died up to when your sister moved in, or indeed after she moved in.
When your sister did move in, did she then take over insuring the house, paying the utilities, maintain the house etc? Did she carry out any extension/renovations to the property when she was living there? And, most importantly, did she at any stage, or indeed any of her sons, acknowledge that you and your other sister were part owners of the house, i.e. pay rent or give any other form of acknowledgment?
If you or your sisters were still in some way using the property, then your sister’s occupation of it was not exclusive to you.
The Statute of Limitations sets out that a person in adverse possession acquires title after 12 years. In the case of a claim to the estate of a deceased person, under a will or intestacy (as in your case), the Succession Act provides that such claim is statute barred after six years.
However, a personal representative of a deceased owner steps into the shoes of that deceased owner and has 12 years to recover the property from any person in adverse possession. You do not say who the executor/personal representative of your mother’s will was or whether a Grant of Probate was extracted in her estate. You also do not confirm whether the property was actually put into your three names or whether it still remains in your mother’s name.
In order to make a claim for squatter’s rights, your nephew would have to set out on affidavit his, his brother and mother’s continuous occupation of the property and the manner in which it was used by them.
He will have to detail what acts they took to prove they intended to dispossess you and your other sister. He will also have to outline a history of the owners of the property, starting with your mother as the registered owner, and set out who was entitled to the property from there. The Property Registration Authority looks at each individual case on its own merits — your nephew will have to prove his title.
You should consult with your solicitor immediately and it would be necessary to bring with you a list of all those acts of ownership you would have carried out in relation to the property and, indeed, any acknowledgments made by your sister/nephews that you had an interest in the house.
Deirdre Flynn is a solicitor with a farming background, practising in Kerry. While every care is taken to ensure accuracy of information provided, Deirdre does not accept responsibility for errors or omissions in this article. Please consult your solicitor as soon as possible.