Complications over the will have divided our family and left us in a legal limbo

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It is vital that anyone signing a will does so with the advice of a solicitor
Deirdre Flynn

Deirdre Flynn

Q I am one of four children all aged between 40 and 65. I have a very good relationship with my brother and one sister but the two of us do not talk to our other sister since our parents' deaths.

The falling-out is due to her being left the family home which is surrounded by 100ac of land which is meant to be divided equally between the other three siblings.

She was being left the family home because she claimed she was in a physically and verbally abusive marriage and said she wanted to leave her husband.

We all agreed that she should be left the family home on these grounds as our parents were in the process of building a bungalow to retire to.

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A provisional will was drawn up in a solicitor's office with my father signing it along with us, a witness and the solicitor. Our mother was not present at the time as she was in the hospital.

It was agreed that she would sign the will once she was discharged from hospital. However, she died in hospital and our father passed away recently.

Our sister has not left her husband and she and her husband claim they are entitled to the house, despite the fact that our mother never signed the will and our sister not leaving her husband. Both she and her husband are determined to bring this to court.

Where do we stand?

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A. There are a number of issues to be dealt with on this query so I am going to tackle each of them individually. It is imperative that you consider the information outlined below and then go to a solicitor along with a copy of your father's will to get specific advice.

Firstly, you say your father signed a provisional will at his solicitor's office.

If your father signed a will with a solicitor, in accordance with the requirements of the Succession Act, then that is his last will and testament. Your parents would have had to each sign their own will.

You say that each of you signed your father's will, along with a witness and the solicitor.

In the first instance, if any beneficiary named in a will witnesses that will, then the bequest to that beneficiary will fail. Therefore, only your father, his solicitor and the witness should have signed that will.

Otherwise, you and your siblings are entitled to nothing from that will. The Succession Act is very strict about the formalities of executing a will and that is why it is vital that anyone signing a will does so with the advice of a solicitor.

You say that your mother was due to sign the will once she was discharged from hospital. As set out above, your mother would have had to sign her own will.

I note you state the original family home of your parents (not the bungalow they were building) was in your parents' joint names.

This is important and you need to ascertain how they held this property.

There are two ways property is held jointly in Ireland. The way joint property is held dictates how that property will be dealt with upon the death of the owners.

This will then determine how the original family home will be dealt with as no matter what a will says, if property is held by two people as joint tenants, then on the death of one, the entire property automatically falls to the other.

You also need to find out if your mother ever made a will in her lifetime - this is hugely important in deciding the answer to your query.

You state that your father's will directed that both your parents and all of you agreed that the original family home would be left to your sister upon her separating or divorcing her husband.

Bequests

Does this mean that your sister would only get the house on condition she separated from or divorced her husband?

It is crucial to get the exact wording of this clause, as it again will assist in determining the answer to your query.

Bequests in a will that have conditions attached to them are difficult and are the subject of a huge amount of litigation.

Whether the condition attaching to same will survive or fail depends very much on the wording.

There is a huge amount of case law surrounding this area and it is necessary that you take the actual wording of the clause to your solicitor to get specific advice.

You do not mention who is to get the bungalow your parents were building or whether it was in their joint names, or in the name of one person only.

You also mention that the original family home was surrounded by 100ac that were to be divided equally between you and your two other siblings but you do not mention who owns this land either.

To conclude, you will need to take a copy of your father's will to a solicitor to get specific advice on both the validity and contents of same. You also need to clarify which of your parents died first, and while I understand this is a difficult time, the order of death in this instance does matter.

You also need to obtain copies of the folios/title deeds to your parents' property to ascertain how each asset was held by your parents. All of this information is vital in determining the distribution of assets in your parents' estates.

The information in this article is intended as a general guide only. While every care is taken to ensure accuracy, Deirdre Flynn does not accept responsibility for errors or omissions how so ever arising. You should seek legal advice in relation to your particular circumstances at the earliest possible time.

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