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If you're fighting over a €250k house, you could lose it all in legal fees

Arguing over a will? Here’s some advice from a barrister.

90398264 File photo Source: RollingNews.ie

WHAT ARE THE most common scenarios that cause families to fall out in relation to wills and inheritance?

Readers have shared some of their own experiences, and there are similarities between many of the stories.

Stephen Spierin, a barrister who specialises in problematic wills, spoke to us about some of the most frequent situations he deals with – and has some advice for people who might be facing one of them.

Regardless of who is fighting whom – siblings, new partners, other relatives – Spierin says it’s “more efficient and cost effective” if parties can come to an agreement rather than go to court.

Courts are mindful this can destroy familial relationships, it’s much better to come to an agreement than let the court decide. Family relationships can break down and become irreparably damaged.

Spierin says many judges will tell involved parties “the only people who benefit from this are lawyers”.

“Time is a bit of a healer, they might start seeing eye to eye again.

“The reality is people have to make a difficult decision … there will be give and take on both sides,” he states.

Spierin notes that if, for example, a family is fighting over a €250,000 two-bedroom house, the money “will diminish very quickly through legal fees”, with very little remaining after a prolonged legal battle.

“Money gets eaten up quite quickly in litigation.”

Section 117

The Law Reform Commission is currently asking for submissions on Section 117 of the 1965 Succession Act. It leaves a legal window open for children who feel they haven’t been given their fair share of inheritance.

Spierin has dealt with many cases relating to Section 117.

Most people divide their estate equally. Often there is one child who hasn’t been as successful as their siblings or hasn’t set themselves up very well. They may want a bit more, or perhaps need it, despite having the same opportunities as their siblings.

“While it is the case that ultimately the person will be seeking money, the law uses the term ‘provision’. This isn’t necessarily money, it could be property or a trust fund comprising money or property or perhaps both, or perhaps it might be a ‘life interest’ in the family home – a legal right to live in the home until the person themselves dies.

shutterstock_389436940 File photo Source: Shutterstock/Andrey_Popov

Spierin says one of the aims of Section 117 is to look after people who have an actual need, such as a physical or mental disability, and so require extra money.

An individual might need care when their parents die but, for whatever reason, this might not be accounted for in their wills.

People can only make a claim under this piece of legislation within six months of the will being released.

Undue influence 

Spierin notes that siblings often fall out if one of them receives more money than the others, or a property, because they cared for a parent in old age.

People will often bring it up because they feel aggrieved … ‘You drove them to the solicitor’s office and told them to give you more.’

Spierin says this is also fairly common in terms of people outside of the family who act as a home help carer.

Some people claim that another relative or person in the deceased’s life unduly influenced them.

This is a “very, very difficult thing to prove”, according to Spierin, who notes: “The person who can give the evidence as to whether this was the case is dead.”

“The aggrieved children or spouse are taking a very subjective view … They might feel hard done by when, in fact, somebody objective might look and it and say ‘You did okay yourselves.’”

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Separated but still married 

Spierin says siblings taking cases against their parent’s new partner has become more common in the last 10-15 years.

Another common issue is created by the fact a spouse is entitled, under the Succession Act 1965, to one third of the estate – or half if there are no children – even if they have been living apart for decades.

Partners can challenge this under the 2010 Civil Partnership and Certain Rights and Obligations of Cohabitants Act.

shutterstock_17496706 File photo Source: Shutterstock/Wil Tilroe-Otte

Spierin explains that spouses are automatically entitled to a share, sometimes even if a legal separation did take place. Oftentimes part of the agreement will be that the spouse does not renounce their succession rights.

The main problem is the fact that many people break up with their spouse many years before their death but, for one reason or another, do not formally dissolve their marriage, even if they spend the remainder of their life with a new partner(s).

“Here the issue is that the former, but still in law, spouse will emerge to claim their legal right share, perhaps much to the distaste of the deceased’s estate and loved ones.”

Legal advice

“Difficulties with wills can be avoided if proper consideration and thought is given when making your will, and very importantly that your will is kept up to date.

By proper consideration, I mean thinking about the persons who you would like to benefit, those you think require assistance and those who you think might expect something.

“Of course consideration has to be given to those who have an automatic right or claim to your estate; for example spouses, former spouses, civil partners, cohabitants and children.”

Regardless of the circumstances, Spierin urges people to get legal advice before moving forward with a claim regarding a will. If money is an issue, he notes that people can contact a free legal advice centre.

“Go to see a solicitor … pub advice is terrible. Treat it like a serious illness, if you were sick you’d go see a doctor, not say ‘The fella in the pub thinks I have cancer.’”

Read: ‘My sister is laughing all the way to the bank, we will never speak again’: Families at war over wills 

About the author:

Órla Ryan

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