Rights of Inheritance

Yanan

A man died in 1950 without making a will, the only heirs to his farm are his 3 sons. Two of the sons remain on the farm and one leaves in 1957. All 3 sons have children.

In time all the sons die, the last son died in 2006. The sons who remain on the farm fail to administer to the property and don't make a will.

They never had the farm transferred into their name and property is still registered to the man who died in 1950.

The family of the sons who remained on the farm are still in dispute about how the property should be divided.

The Question

Would the children of the son who left in 1957 still have rights of inheritance ?

CIARAN_BOYLE

This is a cluster**** of different situations and you need a lawyer.

maringo

The fact that a son left the country doesn't mean he is not entitled to inherit a share of an estate. All sons/daughters as far as I know have equal rights in that situation. Definitely you need to get legal advice on this. A good book to read is Your Inheritance Rights in Ireland written by Robert Grimes, a barrister specialising in succession law - I got it from Goldgreen publishing. But I haven't seen anything in it about a case like that which seems to need good legal advice.

Yanan

Thanks very much for you input maringo and Ciaran, maringo the son did not leave the county just the home farm.

I certainly will be seeking advice from a professional. I am out of work at present and was hoping someone on the forum might be able to tell me if I have a case before I go spending money on a lawyer.

captainzero

lawyers like these cases. know of one that ended with no inheritence for anybody except the lawyers

LowKeyReturn

I linked an article in a post a couple of days ago about Adverse Possession and intestacy - if you are a law student it's well worth a read in regard to this and it's on Westlaw.ie

If you're not a law student this is, as someone has eloquently put it, a cluster**** and you need a lawyer.

Yanan

captainzero wrote: »

lawyers like these cases. know of one that ended with no inheritence for anybody except the lawyers

I so agree with you captainzero, it's a field day for the lawyers involved. It's been 7 year since the last son died and already it has cost a lot of money.

Yanan

LowKeyReturn wrote: »

I linked an article in a post a couple of days ago about Adverse Possession and intestacy - if you are a law student it's well worth a read in regard to this and it's on Westlaw.ie

If you're not a law student this is, as someone has eloquently put it, a cluster**** and you need a lawyer.

Thank you LowKeyReturn, unfortunately I am not a law student.

captainzero

family be better to meet and work something out with help of an independent party rather than throw it all away.

valleyoftheunos

GO speak to an experienced Probate Lawyer, because the first owner died before 1959 and there are so many parties involved you have a very complex situation on your hands.

Kosseegan

maringo wrote: »

The fact that a son left the country doesn't mean he is not entitled to inherit a share of an estate. All sons/daughters as far as I know have equal rights in that situation.

Then you don't know very far. The deceased died in 1950. At that time primogeniture was in force for succession. Sons and daughters were not treated equally.
If a man left a farm in 1957 and made no attempt to claim ownership ever, the chances of his descendants being able to make a stateable claim would be very slim. A lot may depend on whether or not he is the eldest son. Adverse possession will have been running against him for over 50 years in any case. A messy and expensive outing to the courts with no certainty of success is all that can be done.

Yanan

Kosseegan wrote: »

Then you don't know very far. The deceased died in 1950. At that time primogeniture was in force for succession. Sons and daughters were not treated equally.
If a man left a farm in 1957 and made no attempt to claim ownership ever, the chances of his descendants being able to make a stateable claim would be very slim. A lot may depend on whether or not he is the eldest son. Adverse possession will have been running against him for over 50 years in any case. A messy and expensive outing to the courts with no certainty of success is all that can be done.

On the other hand the sons who remained on the farm made no attempt t to have the farm transfer to their names, they had 56 years to do so. To this day the farm remains in their fathers name.

captainzero

did the mother of the sons survive for long? would the 2 sons have provided security and care ? in that sort of case there would be a decency thing even if the law doesnt give any recognition to it.

Yanan

captainzero wrote: »

did the mother of the sons survive for long? would the 2 sons have provided security and care ? in that sort of case there would be a decency thing even if the law doesnt give any recognition to it.

The mother died just 3 months before the father. There is more to this case than I have said before captainzero.

The family of the son who left did not want to pursue the inheritance hence the delay of 7 years after the last son died. It was their fathers wishes that the other brothers should share the farm and they were respecting those wishes until now.

A family member of the son who left was given a small bit of land on the farm by the 2 uncles and has been living there for the past 9 years.

Unfortunately his cousin is now trying to have him evicted because of a disagreement they had a number of years ago, greed and vengeance are a very unwholesome force.

The bit of land in question is minuscule compared to the size of the farm, and all 3 brothers were pleased that he should have it.

captainzero

if the farm occupiers are smart the wishes of the three brothers should be respected

Yanan

captainzero wrote: »

if the farm occupiers are smart the wishes of the three brothers should be respected

It's surprising how people behave when there is a lot of money involved, and there is greed on all sides of this dispute.

This eviction is just an excuse some are using to disguise their own greed.

Kosseegan

Yanan wrote: »

On the other hand the sons who remained on the farm made no attempt t to have the farm transfer to their names, they had 56 years to do so. To this day the farm remains in their fathers name.

That has nothing to do with inheritance rights. They were in occupation. Anyone claiming under them has exclusive occupation back over 50 years.

Yanan

A member of the family has contacted me. They had a meeting with a probate lawyer today and were advised that they are entitled to one third of the estate.

Apparently the 2 sons who were successors in title failed to administer to their fathers estate while they were alive. It is now up to all the mans grandchildren to administer to his estate.

Pat Mustard

Yanan wrote: »

A man died in 1950 without making a will, the only heirs to his farm are his 3 sons. Two of the sons remain on the farm and one leaves in 1957.

Does the part in bold mean:

(a) Of the three sons, one left in 1957 leaving two sons remaining on the farm, or,

(b) Two sons remained on the farm, one of whom left in 1957, leaving only one brother remaining on the farm.

?

valleyoftheunos

There are a two issues here

Firstly, what were the rules of Intestacy in 1950? (I don't know and I don't have time to look it up)

Secondly, if under those rules the son who left in 1957 gained an interest in the land, has it been extinguished by adverse possession of the remaining two brothers. (Depends on the facts, perhaps not)

Yanan

The Mustard wrote: »

Does the part in bold mean:

(a) Of the three sons, one left in 1957 leaving two sons remaining on the farm, or,

(b) Two sons remained on the farm, one of whom left in 1957, leaving only one brother remaining on the farm.

?

There are 3 brothers, 1 brother left in 1957 and the other two brothers remaind on the farm

Yanan

valleyoftheunos wrote: »

There are a two issues here

Firstly, what were the rules of Intestacy in 1950? (I don't know and I don't have time to look it up)

Secondly, if under those rules the son who left in 1957 gained an interest in the land, has it been extinguished by adverse possession of the remaining two brothers. (Depends on the facts, perhaps not)

You are right the two brothers who remained on the farm had all those rights you mention above, the problem is they failed to exercise throes rights while they were alive.

The fact is that a diciest person would find it very difficult to fill in an adverse possession application. I don't mean any disrespect but how else can I explain it.

Kosseegan

valleyoftheunos wrote: »

There are a two issues here

Firstly, what were the rules of Intestacy in 1950? (I don't know and I don't have time to look it up)

Primogeniture.
The 1965 Succession Act brought in the current intestacy rules.

valleyoftheunos wrote: »

Secondly, if under those rules the son who left in 1957 gained an interest in the land, has it been extinguished by adverse possession of the remaining two brothers. (Depends on the facts, perhaps not)

It may well have.

valleyoftheunos

Yanan wrote: »

You are right the two brothers who remained on the farm had all those rights you mention above, the problem is they failed to exercise throes rights while they were alive.

The fact is that a diciest person would find it very difficult to fill in an adverse possession application. I don't mean any disrespect but how else can I explain it.

In terms of who is entitled to the land now, the two questions I posed must be answered.

to put it another way,

1: did all three brothers get an equal share of the land when their father died?

2: assuming they did, did the brother who left loose his share of the land when he left? The only way he would have is if the the other two brothers could claim adverse possession and thus extinguish his share. I doubt they could have but that is just a guess based on the scant facts we have.

If question 1 is answered yes and question 2 is no then the heirs of the brother who left in 1957 would be entitled to his share of the land between them.

Otherwise they are not entitled.

Yanan

Kosseegan wrote: »

Primogeniture.
The 1965 Succession Act brought in the current intestacy rules.

It may well have.

The remaining two brothers could have adversely possessed the farm but the didn't. To adversely process they would have to make an application to the land register which they failed to do.

Anyway they didn't need to adversely process all they had to do was transfer the property from their fathers name which they also failed to do.

With regard to Primogeniture, there was a high court case between the families of the two who remained on the farm. The case was struck out in January last.

After the court case the families agreed to divide the land between them which would indicate that the law of Primogeniture does not apply in this instance. If it did then the offspring of the eldest brother would be the sole air to the property.

valleyoftheunos

Yanan wrote: »

The remaining two brothers could have adversely possessed the farm but the didn't. To adversely process they would have to make an application to the land register which they failed to do.

Anyway they didn't need to adversely process all they had to do was transfer the property from their fathers name which they also failed to do.

That is not correct, whilst they perhaps could have made a claim for possesory title to the Land Registry (although I don't understand how the land could have been registered if the title hadn't changed since before 1950) adverse possession works to bar a claim on the land by a person who is claiming an interest after a certain period of time. Adverse possession is best thought of as a defence to claim made against you rather than a claim you make yourself.

Yanan wrote: »

With regard to Primogeniture, there was a high court case between the families of the two who remained on the farm. The case was struck out in January last.

After the court case the families agreed to divide the land between them which would indicate that the law of Primogeniture does not apply in this instance. If it did then the offspring of the eldest brother would be the sole air to the property.

This is all new information but the case between the two remaining brothers is between the two of them and not the the brother who left, for that reason it might not be determinative of his rights, furthermore it was struck out so it may not be of much relevance at all.

Equally the agreement between the families doesn't necessarily indicate anything in relation to the law, It may have been a matter of settlement between the two families especially after the High Court case was thrown out for whatever reason.

OP this problem require genuine Legal advice from a solicitor who is briefed with the full facts of the case and has the time and expertise to establish the law and how the law will operate in relation to the facts. I'm sorry to say you won't be able to find an answer to your question on this Board.

Yanan

valleyoftheunos wrote: »

In terms of who is entitled to the land now, the two questions I posed must be answered.

to put it another way,

1: did all three brothers get an equal share of the land when their father died?

2: assuming they did, did the brother who left loose his share of the land when he left? The only way he would have is if the the other two brothers could claim adverse possession and thus extinguish his share. I doubt they could have but that is just a guess based on the scant facts we have.

If question 1 is answered yes and question 2 is no then the heirs of the brother who left in 1957 would be entitled to his share of the land between them.

Otherwise they are not entitled.

Briefly valleyoftheunos the answer to 1 is yes and the answer to 2 is no

valleyoftheunos

Yanan wrote: »

Briefly valleyoftheunos the answer to 1 is yes and the answer to 2 is no

To be fair to you Yanan I'm not at all sure that you know the answers to those questions.

I want to make clear that I am in no way giving you legal advice merely illustrating the issues that are involved in this situation. i think this thread is sailing close to the wind in terms of the charter and for that reason I won't be contributing further.

Best of luck.

Yanan

valleyoftheunos wrote: »

That is not correct, whilst they perhaps could have made a claim for possesory title to the Land Registry (although I don't understand how the land could have been registered if the title hadn't changed since before 1950) adverse possession works to bar a claim on the land by a person who is claiming an interest after a certain period of time. Adverse possession is best thought of as a defence to claim made against you rather than a claim you make yourself.



This is all new information but the case between the two remaining brothers is between the two of them and not the the brother who left, for that reason it might not be determinative of his rights, furthermore it was struck out so it may not be of much relevance at all.

Equally the agreement between the families doesn't necessarily indicate anything in relation to the law, It may have been a matter of settlement between the two families especially after the High Court case was thrown out for whatever reason.

OP this problem require genuine Legal advice from a solicitor who is briefed with the full facts of the case and has the time and expertise to establish the law and how the law will operate in relation to the facts. I'm sorry to say you won't be able to find an answer to your question on this Board.

You are very good valleyoftheunos thank you very much for your input, your advice is sound.

As I said in post #18 an heir of the man who left has received advice from a lawyer yesterday that they are indeed entitled to a third of their grandfathers estate

Kosseegan

Yanan wrote: »

The remaining two brothers could have adversely possessed the farm but the didn't. To adversely process they would have to make an application to the land register which they failed to do.

Not correct. They only had to occupy the land to the exclusion to all others.

Yanan wrote: »

Anyway they didn't need to adversely process all they had to do was transfer the property from their fathers name which they also failed to do.

Doesn't mean that they cannot claim adverse possession.

Yanan wrote: »

With regard to Primogeniture, there was a high court case between the families of the two who remained on the farm. The case was struck out in January last.

What does that mean? Primogeniture was they method of succession in place in 1950. What has that got to do with a case in 2012? Primogeniture was the system of succession where the eldest son inherited.

Yanan wrote: »

After the court case the families agreed to divide the land between them which would indicate that the law of Primogeniture does not apply in this instance. If it did then the offspring of the eldest brother would be the sole air to the property.

If it doesn't apply, it must be because the matter was being dealt with by way of long possession and not on the basis of entitlement to a share of the grandfathers estate which is what most judges would insist on.

Yanan

Kosseegan wrote: »

Not correct. They only had to occupy the land to the exclusion to all others.


Doesn't mean that they cannot claim adverse possession.


What does that mean? Primogeniture was they method of succession in place in 1950. What has that got to do with a case in 2012? Primogeniture was the system of succession where the eldest son inherited.


If it doesn't apply, it must be because the matter was being dealt with by way of long possession and not on the basis of entitlement to a share of the grandfathers estate which is what most judges would insist on.

I really don't know the answer to any of those questions Kosseegan. I posted here because I am totally confused and was hoping to find answers. My knowledge of inheritance law is very poor.

I think it is significant that a professional lawyer has advised that the heirs of all 3 brothers have a right to share the estate

Kosseegan

Yanan wrote: »

I really don't know the answer to any of those questions Kosseegan. I posted here because I am totally confused and was hoping to find answers. My knowledge of inheritance law is very poor.

I think it is significant that a professional lawyer has advised that the heirs of all 3 brothers have a right to share the estate

There was a case in Mayo last year where two brothers tried to claim a share of their fathers estate after 40 years. The only winners were their "professional lawyers" who encouraged them in a fruitless court case.

It is obvious you are totally confused and you don't understand what is happening. There are lawyers happy to tell people what they want to hear with regard to inheritance and collect big fees only for the court to rule against them.

Pat Mustard

valleyoftheunos wrote: »

2: assuming they did, did the brother who left loose his share of the land when he left? The only way he would have is if the the other two brothers could claim adverse possession and thus extinguish his share. I doubt they could have but that is just a guess based on the scant facts we have.

3.6 Social Visits
Short social visits by those who left are not enough to prevent the statute running against them. See McEneaney v. McEneaney 54 I.L.T & S.J. 199; In re McCann (1966) 17 N.I.L.Q. 292; Sands v. Dooley 46 I.L.T.R. 197; and articles in 85 I.L.T.R. & S.J. at pp. 267 and 277.

Link

Yanan

Maybe I can shed some light on the reason the lawyer advised the way she did. I just had one of those eureka moments. The 2 reaming brothers did not have exclusive use of the property.

A daughter of the son who left was given permission to live on a part of the estate by the 2 brothers who remained in 1983/4.

She lived there with her family for seven or eight years in a mobile home. After she left her friend used the mobile as a second home until 2004. Then her brother moved in and is there to this day. I wonder is this why they are trying to evict him.

Would this clarifier the situation ? :rolleyes:

Yanan

Kosseegan wrote: »

There was a case in Mayo last year where two brothers tried to claim a share of their fathers estate after 40 years. The only winners were their "professional lawyers" who encouraged them in a fruitless court case.

It is obvious you are totally confused and you don't understand what is happening. There are lawyers happy to tell people what they want to hear with regard to inheritance and collect big fees only for the court to rule against them.

Were you never confused in your life :mad:

It so happens the lawyer in question is a very close friend of the family, and has agreed to take on this case for FREE

The family did not aproach her before because they knew she would not want to be paid

Kosseegan

Yanan wrote: »

Were you never confused in your life :mad:

What of it?

Yanan wrote: »

It so happens the lawyer in question is a very close friend of the family, and has agreed to take on this case for FREE

Most unusual for any lawyer to take on such a case for close friends. It will require more than one lawyer anyway. Are they all going to work for FREE? In any event the loser has to pay so if the case is lost there will be the other sides costs to pay.

Yanan wrote: »

The family did not aproach her before because they knew she would not want to be paid

So?

valleyoftheunos

The Mustard wrote: »

Link

yes that is correct but the crucial part of AP is establishing Animus Possidendi its notoriously difficult to do and from the limited facts given I suspected the remaining brothers might have failed in so doing.

There is of course the infamous case where causally looking over a fence at the land once or twice a year was enough to prevent a claim of adverse possession.

Pat Mustard

valleyoftheunos wrote: »

yes that is correct but the crucial part of AP is establishing Animus Possidendi its notoriously difficult to do and from the limited facts given I suspected the remaining brothers might have failed in so doing.

The practicalities of AP and the proofs may be difficult.

However, the question of whether AP is established in favour of the estates of the two original sons will have to be decided.

valleyoftheunos wrote: »

There is of course the infamous case where causally looking over a fence at the land once or twice a year was enough to prevent a claim of adverse possession.

Doesn't ring a bell. Do you have a link?

Yanan wrote: »

Maybe I can shed some light on the reason the lawyer advised the way she did. I just had one of those eureka moments. The 2 reaming brothers did not have exclusive use of the property.

A daughter of the son who left was given permission to live on a part of the estate by the 2 brothers who remained in 1983/4.

She lived there with her family for seven or eight years in a mobile home. After she left her friend used the mobile as a second home until 2004. Then her brother moved in and is there to this day. I wonder is this why they are trying to evict him.

Would this clarifier the situation ? :rolleyes:

It does not clarify the situation.

If the two remaining brothers relinquished possession of part of the lands, I don't see how this can lead to an argument that they were not in possession of the remaining lands.

Yanan

The Mustard wrote: »

The practicalities of AP and the proofs may be difficult.

However, the question of whether AP is established in favour of the estates of the two original sons will have to be decided.


Doesn't ring a bell. Do you have a link?



It does not clarify the situation.

If the two remaining brothers relinquished possession of part of the lands, I don't see how this can lead to an argument that they were not in possession of the remaining lands.

There was no boundary fence dividing that part of the estate where the mobile home is until recently .

The wife of one of the brothers who remained erected the fence to mark out the boundaries a few years after the last brother died.

Also the brother who left did use another field to sow crops until the mid 70s, he also had sheep on the land around that time :rolleyes:

Pat Mustard

Yanan wrote: »

There was no boundary fence dividing that part of the estate where the mobile home is until recently .

The wife of one of the brothers who remained erected the fence to mark out the boundaries a few years after the last brother died.

Also the brother who left did use another field to sow crops until the mid 70s, he also had sheep on the land around that time :rolleyes:

I am not certain if you understand what the :rolleyes: symbol is supposed to mean, given your post count, but you have used it twice now, inappropriately.

Yanan

The Mustard wrote: »

I am not certain if you understand what the :rolleyes: symbol is supposed to mean, given your post count, but you have used it twice now, inappropriately.

:P