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Saturday 15 December 2018

Legal Advice: Family row has stalled grandfather's will - am I or my mother entitled to anything?

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Our resident solicitor tackles this legal issue - if you have a legal query send it to our legal team - editor@farmireland.ie

I’ve been caught up in the fallout of a dispute about my grandfather’s will that has been contested and held up for  a couple of years.

My grandparents had five sons and daughters, two of which were left parcels of land and the others a sizeable amount of money from the estate when my grandfather died.

He left an 80-cow dairy farm and 50-acre tillage farm and according to his will, these were intended to be given to two of my uncles, who have farmed the land for the past 30 odd years.

However, one aunt, who is no longer a resident of Ireland, felt hard done by in the will when she was to receive €8,000 – as were the rest of the siblings who didn’t get any land, including my father.

This dispute over the division of my grandfather’s estate has been ongoing since he died five years ago and it seems that no headway has been made. My father and the rest of the siblings have fallen out with their sister over this and it’s something that we didn’t discuss for the past few years in our house.

So, neither I nor my siblings, know what is happening with the will as it is not up for discussion with my extended family. Is there a point where the state becomes involved if the will continues to be contested?

The whole situation has been brought to the fore recently as my father, who was left €8,000 in the will, has since passed away and I’ve been told that my mum is to inherit what he was entitled to, but she’s not in the best of health and has been in a nursing home for the past few years, with daddy managing their affairs.

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But now that’s he’s passed away, myself and my siblings have to take over and sort out their affairs.

Can you advise me on what I should do on this matter and what my mother’s rights are as a bystander in this sensitive issue, or even if I or my siblings are entitled to be updated of the status of my grandfather’s will.

Also, at this point I’m beginning to wonder if there is anything of the original estate left or if legal fees are eating into it.

Where do I go about getting a straight answer, or am I even entitled to one?

 

Thank you for your query. Unfortunately, your family’s situation and that of an unsatisfied beneficiary of a Will is not an uncommon story. It is made even more complicated and stressful by the passing of your father leaving you, the next generation, to deal with the matter.

At the outset, there is no point at which the State will get involved in a Will dispute. There is a common misconception that if someone dies without a Will, or there is a legal battle over a Will, that the State can take some or all of the property. This is not the case.

The only time the State will get the property of a deceased person is when they pass away with no known relatives whatsoever. Efforts will made to locate any relatives of the deceased before any property will pass to the State. When someone dies without a Will, the Succession Act sets out the order in which next of kin may benefit. If the deceased has any relatives, then the estate will be divided equally between them.

With regard to the €8,000 left to your father by your grandfather, as he survived his father and then died, this €8,000 will go to his Estate to be distributed according to his Will, or if he died without a Will, then to the according to the rules of intestacy. You have said that you have been told that your mum is to inherit your father’s share therefore I presume your father made a Will leaving everything to her.

You say your mother is in a nursing home and not in the best of health and you and your siblings must take over to sort out their affairs. I query whether your mother is of sound mind or is she mentally incapacitated, i.e. is she able to make her own decisions?

If she is of sound mind, then your mother, as the person now entitled to your father’s inheritance, could reasonably seek an update from the solicitor for your grandfather’s Estate of the status of the administration of the Estate. Unfortunately, you and your siblings, as you are not beneficiaries, are not entitled to obtain this information.

If your mother is mentally incapacitated, then you are in further difficulty particularly if your mother did not execute an Enduring Power of Attorney nominating someone to act as her Attorney in the event she becomes mentally incapacitated. If this is the case, it would be prudent to seek advices from your mother’s solicitor on her particular circumstances.

With regard to legal fees, they are generally paid from the Estate of the deceased. You don’t say whether or not Court proceedings have been issued by your aunt, but generally the legal costs for such proceedings can be taken from the Estate of the deceased if the Court is satisfied that there were reasonable grounds for starting the proceedings and same were conducted in a bona fide manner.

 

Deirdre Flynn is from a farming background and practices as a Solicitor at Deirdre Flynn Solicitors, 4 Ivy Terrace, Tralee,  Co. Kerry Tel: 066 7115695   Email: info@deirdreflynnsolicitors.ie

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.

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