We often hear that a stitch in time saves nine! What does that really mean? In the context of this article I am using the saying as a reminder that a timely effort and advance planning will save more work in the long run but more importantly it will protect and save familial relationships and avoid unnecessary expenses. In family disputes make no mistake there are only losers in contested and disputed estate rows. Contentious disputes tear families apart. I write today about avoiding contention when you can or at least be aware of what can cause a Will war. There are signs you can choose to be alert to that may indicate that contention may arise after you pass on. The news papers regularly cover stories where by necessity Wills are challenged and inequities are remedied by the court. These cases have a high value and where its worth, for one side or the other, contesting a Will. But where acrimony arises over smaller matters its clear some issues could have been foreseen by the deceased. The administration of an estate is equal parts legal and personal. Disputes that arise rarely come out of the blue and they can often be anticipated and avoided. Earl Nightingale once said ‘All you need is the plan, the roadmap and the courage to press on to your destination ‘and in this article I want highlight what’s worth paying attention to.
Inequity and economic disparity among beneficiaries
In the recent case Estate of K deceased and in the matter of S117 of the Succession Act 1965 between K V K where a mother sought to leave a 3 million euro value to one son , 42k euro to another son and 750k euro to another Mr Justice Denis McDonald stated clearly as he remedied the gift inequity between the sons that the deceased their mother was of course entitled to make a more generous gift to the defendant than to the plaintiff but it seemed to the judge that the disparity between the gifts was extreme and that a prudent and just parent would not in light of the evidence he heard permit such a disparity to exist . In this case it became clear to the judge that the deceased mother in this case was influenced by other factors where she clearly preferred one son over the other for reasons not of his making .The deceased mother had also changed her will 2 times prior to her death and reduced what she was leaving to her son initially each time she remade her Will from what she and her husband had initially agreed to do in return for his work on the farm . An incident that happened within the family and that had led to the demise of relationship between the deceased and her son and his wife and family. Her decision to reduce her gift to him appeared to be linked to the deterioration in the relationship and the outcome of a completely unrelated matter to her Will and her wishes. The judge found in favour of the son who brought the case against his mother’s Will. The judge cited the inequity and shared the value of the estate more equally based on the facts of the case as presented and what he saw that a just and prudent parent would do. No parent is obliged to leave their estate to their children .The Succession Act makes it clear the only obligation a parent has to a child is a ‘ moral one ‘ but there may be other considerations for you to consider when making your will as there was in this case where a son had left school at 15 years old to work on the family farm . Other considerations to weigh up are whether you advanced money previously to one or some children more than others. Had there been any perceived inequity? Have you promised something to someone in return for their work or assistance that could be seen a promise to be repaid in the future? Making a will should entail a consultation with someone experienced in Estate planning, Wills and Succession.
A parent’s death is the ultimate test of any tensions brothers and sisters think they have overcome or outgrown. Grief can often trigger a reflection of days gone by and memories of bygone odds that were never evened up. In my experience when the matriarch or patriarch are still alive the relationships between siblings are managed in a way so as not to distress parents but as a parent it is important for you to recognise the differences between children in personality, in wishes, and in the way, they are living their life. The administration of an estate can sometimes become the battle ground for unsettled scores and an opportunity for some that feel they were hard done by to stand by their wishes and hold others to account and to ransom decisions that may need to be made for the good of everyone. To avoid this be clear and be proactive. Ensure you do make a will, discuss out loud your concerns for contention. Be very specific with items and assets you know can lead to conflict.
Administer and Distribute – Time constraint
Section 62 of the Succession Act declares that the executor and personal representatives of an estate shall distribute the estate ‘as soon as it is reasonably practicable having regard to the nature of the estate ….’ The Act cites a year as the time in which an estate should be distributed but the act does not allow for the payment of deceased debts to be deferred to the end of that year. There is an obligation to pay due debts with due diligence. We have acted for beneficiaries who have to chase the executor to administer the estate in situations where sibling relationships are not positive and the executor is the main beneficiary and in possession of the asset already (perhaps a house or farm ) but administering the estate may be necessary for a life policy , a bank account or an post savings account for other beneficiaries and the executor named in the will has little interest in taking up their role . In that case in order to avoid conflict choose who is the best person to be the executor in the specific instance when making your will.
Unworthiness to Succeed or Disinheritance
The Succession Act 1965 confers a valuable right on a surviving spouse to inherit. However, there are; circumstances where a spouse is debarred from taking any benefit from your estate by reason of their actions or behaviour during your lifetime. Section 120 of the Act sets out the grounds upon which a spouse or child shall be excluded from succession. Some of the other reasons that a court will stand by in excluding a spouse despite the entitlement to a legal right share are; Desertion – where it is deemed a spouse has deserted you up to 2 years before your death OR where a person has been found guilty of an offence against you. Another ground cited although the last recorded case was in 1959 is the act is ‘restitution of conjugal rights ‘ where a spouse has failed to comply with a decree for restitution obtained by the deceased! There are many reasons conflict can arise. Do not underestimate the power of clarity and having a sounding board.
Call Cahir’s Solicitors on 6828383 to schedule a consultation to discuss your estate plan or inheritance.