Sunday 17 December 2017

Where there's a will ... there's a family row waiting to happen

Some steps you can take to help avoid the huge upset your will might cause

Richard Harris in The Field, which showed just how divisive the issue of land can be
Richard Harris in The Field, which showed just how divisive the issue of land can be
Louise McBride

Louise McBride

Families can be torn apart by wills. Ill-thought out, poorly communicated, and indeed absent wills can trigger major family rifts - particularly where property or land is involved, as is often the case with Irish families.

Even seemingly fair wills can lead to deep divisions. "I've seen very unfair wills and I've seen wills that appear to be fair and yet still cause rifts," said Mura Browne, a solicitor with Browne & Co Solicitors in Letterkenny.

However, there are some steps you can take to help avoid the huge upset which your will might cause.

Damage limitation

Consider discussing your will with your family before you finalise it.

"A will is a private thing - and whatever you put into it is your business," said Browne. "Where there's a number of people in a family, it can be a good idea to sit down with them all - or sit down with them individually - and ask them what they want from your will. You may find that a person doesn't want what you had planned to leave to them. The problem though is that whenever a family start to discuss what they want from a will, it can cause rifts before the person even dies."

Avoid suggesting to people that you're going to leave something to them - if you have no intention of doing so or if you haven't already included such instructions in your will. You may die before making a will and should that happen, the person is unlikely to get what you promised them. Unfulfilled promises can be a major source of strife with inheritances. Many people have been promised inheritances of land sites, houses or cash - only to find that those assets have not been earmarked for them in a will. This can lead to disappointment and resentment.

"Don't give someone the impression that you're going to give them something if you haven't already said so in a will," said Browne. "Someone can be led to believe they're going to inherit something and then they can be shocked when they don't get it."

Attaching conditions to an inheritance can be another major source of family rows. "If you are going to give someone something in a will, just give it to them," said Browne. "Attaching conditions to something can cause massive family feuds - especially with property. People often leave the family home to someone on the condition that the property can be used by the rest of the family as a holiday home. That can cause war."

Another major source of family rows is when one child is treated differently to others in a will. "Parents may decide that one child gets less than others," said Patrick Murphy, managing director of Retirement & Life Planning, which runs retirement courses across the country. "Perhaps the child was put through college - when the others weren't and so the child who received the college education may not be getting left as much. If you're going to do something differently for one of your children, be sure to explain why. Your solicitor can put a letter into your will explaining this."

An explanation should also be given if one child, relative or individual is being left much more than others in the family.

Biggest mistakes

One of the biggest mistakes you can make when it comes to wills is not making one. You are said to be intestate if you die without making a will, and in such cases it is ultimately the law that decides who inherits your wealth and property. Should you die intestate, when you are survived by your spouse and children, the rule of the law is that two-thirds of your estate will go to your spouse; with the rest divided equally among your children. This may not be how you wish your estate to be divided.

Following family or local traditions may also be unwise. "In rural areas, people often still have the tradition of giving everything to the eldest son so that the family name is carried on after the parents pass away - particularly if it's a farm or land that's being passed on," said Browne. "The family name can still be lost if you do that though - as the eldest son could sell on the land or farm."

Even if you make a will, failure to regularly review it can lead to problems - or see important people in your life lose out on an inheritance.

"People often make a will when they take out a mortgage but they never review it afterwards," said Derek Bell, chief operating officer with the Retirement Planning Council of Ireland. "However, people will come in and out of your life after you make a will - and your circumstances are likely to change as you get older. So it's important to review a will every five years."

Children can often be overlooked in wills - particularly in the event of the untimely death of one or both spouses. Should you have children, it's important to include them in your will - regardless of which spouse outlives the other. This is particularly the case if your children are young, or if one of them has a medical condition or disability and so requires care and financial support. Couples often plan to draw up a will where the surviving spouse inherits everything - on the assumption that one spouse will outlive the other and that the surviving spouse will look after the children. However, this may not always happen. Both parents could have an untimely death or die at, or very near, the same time. "There will effectively be no will if both parents die at the same time and a will has been made leaving everything to the surviving partner," said Bell. Be mindful too that one spouse could remarry after the other passes away - or that one or both spouses could remarry if the marriage breaks down. In such cases, the children of the first marriage could be at a disadvantage if they haven't been provided for in a will.

"If the surviving spouse remarries, the new wife will automatically be entitled to half of everything - and if the new marriage produces children, the share of an estate left for the children of the first marriage will be watered down again," said Browne.

Will must-knows

You cannot disinherit your spouse or civil partner. Should you make a will but leave your spouse out of it, he or she is entitled to a legal right share of your estate - which can be claimed after you die, if they wish to do so. In such cases, should you have no children, your spouse has an automatic right to claim half of your estate. Should you have children, your spouse is entitled to a third of the estate and your children are not necessarily entitled to the rest. You do not have to leave anything to your children in your will. However, if you do not, they may be able to challenge your will on the basis that you have not fulfilled your obligations towards them.

You can leave instructions in your will stating that money in your bank account be used to cover the cost of your funeral expenses when you die.

Hire a solicitor or get professional advice when drawing up your will - otherwise, you could make a will which is wholly, or partly, invalid. Should this arise, the rules of intestacy will apply to either the entire will or the invalid part - and so your wishes on how your estate is divided are unlikely to be carried out. Tell a trusted relative or friend where your will is. "Very often, people know a will is made - but can't find it," said Bell. "Normally, the original is left with a solicitor - and a photocopy with the individual's other papers."

Wills are said to bring out the worst in human nature so there is never any guarantee that yours will be received amicably, despite any efforts you take to achieve that. Still, it's worth doing what you can to avoid conflict after you pass away.

You can expect to pay a solicitor anything from €100 to a few hundred euro for a simple will. However, the cost could be much more, depending on how complicated your will is. "Wills for very big complicated cases could cost tens of thousands of euros," said Michael Gaffney, a tax expert with KPMG who has advised many family businesses on succession planning.


Useful resources

This is the website of the Citizens Information Board — the State board tasked with providing information on public and social services. It is an excellent website with comprehensive information on a wide variety of topics, including wills and inheritance. In its ‘Death and Bereavement’ section, there is information on how to make a will, what happens a deceased’s estate if they havehe has — or have not has not — made a will, how to register a death, and the main money matters that can arise after a death. You can also find information about Capital Acquisitions Tax — more commonly known as inheritance tax — on this website.

This is the website of the Law Society of Ireland. The site has a link to a helpful ‘Making a Will’ guide which outlines the basic information one needs to hand when drawing up a will, what to bear in mind if you have young children, and where you stand with wills if you are separated, divorced, or married. To pull up this guide on the website, click the ‘Public’ tab, following by the ‘Legal guides’ tab, and then click ‘Making a Will’. Towards the end of the ‘Making a Will’ page, there is a link to the ‘Making a Will’ guide. Bear in mind that this guide is dated November 2014, so some rules around inheritance tax have changed since it was written. This website also has a section where you can search for a solicitor.

This is the website of the Revenue Commissioners where you can find information on inheritance tax, including the tax-free thresholds (where you can inherit a certain amount tax-free, depending on your relationship to the disponer), and the inheritance tax reliefs and exemptions which you may be able to claim. There is also a good section on the common issues that can arise when calculating inheritance tax, such as the valuation date to be used when calculating the value of a gift or inheritance — and when you can claim a credit for Capital Gains Tax (CGT) if both CGT and inheritance are chargeable on an asset. To pull up the site’s section on inheritance tax, click the ‘Capital Acquisitions Tax’ link in the site’sA-Z glossary.

This is the website of Age Action, a lobby group for the elderly. It includes news snippets and blogs which are of interest to the elderly. In the site’s ‘How we can help’ section, there is good information on elder abuse, including how to spot it — and how to protect yourself against it.

This is the website of the Law Reform Commission. The Commission is currentlyexamining the rules around Section 117 of the Succession Act 1965 — the law which allows a child to challenge a parent’s will. Last year, the Commission published a paper on the issues it is examining around Section 117. You can read this paper by clicking ‘Current Projects’, ‘Land Law Succession and Trusts’ and then the link to the paper itself.

This is the website of the Retirement Planning Council of Ireland where you can find information on the organisation’s retirement-planning courses.

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