But my wife thinks it will cause a deeper family rift. What should I do?
Question: My son and I haven’t been on good terms for some time now. He made some bad decisions in his younger years, which led to an ongoing rift between us.
At 18, he moved out of the family home and, to all intents and purposes, away from our family unit.
He visits a couple of times a year, but these meetings always culminate in a row when he brings up my political and religious beliefs. I am a big believer in family duty, but my son doesn’t acknowledge these duties.
He doesn’t care about my welfare or the challenges we as a family have faced.
He ignores family commitments and forgets people’s birthdays. His siblings, on the other hand, have been supportive and steadfast.
I’m thinking of leaving him out of my will, but my wife is concerned it will lead to a deeper family rift between my son and his siblings, who are on relatively good terms. At the very least, it doesn’t seem fair to leave them equal amounts. What should I do?
Answer: When it comes to making a will, most parents will instruct their executor to divide their estate equally among their children, if only to avoid family conflict.
Still, some parents take a broader view of fairness and just distribution, which may be why unequal inheritances are on the rise.
I shared your dilemma with solicitor Caitriona Gahan, Senior Associate with Lavelle Partners, who notes that it is not necessary for there to be equality between children when making a will.
“A just and prudent parent may treat his children unequally depending on their situation and needs,” she says. Likewise, no child “has an entitlement to any specific share, or indeed to any share, from their parents’ estate”, she adds.
However, a child can apply under Section 117 of the Succession Act 1965 to either the High Court or the Circuit Court “for provision to be made for that child out of their parents’ estate or for greater provision to be made for that child than the provision made in their parents’ will”, she says.
“Where the court is of the opinion that the testator has failed in his/her moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate, as the court thinks just.”
To put it simply, your son can contest your will unless you leave everything to your spouse, who would then decide how your joint assets would be distributed among your children.
“If the letter writer leaves everything in his will to his wife, then his child cannot make an application under Section 117 in circumstances where the wife of the testator is the mother of the child,” she adds.
Another option, she says, is to give a pecuniary gift to the other children and express in a letter of wishes or an affidavit your reasoning for doing so.
“A will, once probated, is a public document and generally for this reason, I would advise that the testator refrains from making any public statement in terms of family disputes or dissension,” she says. “Having left pecuniary bequests to his other children, he could then share the residue between all of his children.”
I also shared your dilemma with counsellor and psychotherapist Valerie Ballarotti of Crea Counselling, who is curious about the context of your query.
“A question therapists often ask when someone seeks their help is ‘why now?’,” she says. “Writing a will confronts us with our mortality, our utmost vulnerability. The inevitability of death exposes us to our lack of control, our powerlessness.
“I wonder if focusing on whether or not to disinherit his defiant son may also be a way of holding on to an illusion of control, keeping this deeper layer of vulnerability at bay?
“I imagine these are two men who feel betrayed and hurt by one another and who are managing their hurt as best they know how: by withdrawing or being confrontational, by excluding and withholding,” she says. “What would happen if they could see the pain beyond these protective strategies?”
She’s also curious about your own upbringing. “His duty-based view of family dynamics is rooted in traditional values passed on from generation to generation, which made me wonder about the writer’s background and family of origin. What did he, as a son, have to sacrifice in order to ‘honour the father’? How was it for him to be at the other end of this power dynamic?”
Ballarotti says she can hear two voices when she reads your letter. The dominant voice is that of “the authoritative head of the family”, she notes, but she also hears “another, quieter voice”, expressed in the statement ‘he doesn’t care about my welfare or the challenges we as a family have faced’.
“This is a painful statement to make,” she says, “and it hints at the human vulnerability and hurt underneath. If this quieter voice was allowed to speak, what would it say to the estranged son? How would it wish to be responded to by him?
“By asking the question, the writer opens a space for reflection, taking into consideration other perspectives within the family, that of the siblings who, despite the rift, seem to be ‘on relatively good terms’. That of his wife, who warns him against leaving a legacy of discord among the children.”
Gahan made a similar point. “The son appears to maintain a reasonable relationship with his mother and siblings.
"While there is no requirement for the father to make provision for his son in his will, especially if the son has been educated and is settled in life (has a home, job, etc), has he talked to his other children and listened to their views?” she asks.
“They may well prefer that their legacy is a smaller financial benefit and harmony among siblings, rather than a greater financial benefit with disharmony.”
If you have a dilemma, email firstname.lastname@example.org.