Contesting a will

TonySoprano74

Hi I am an only child and my dad has passed away 2 weeks ago, at the same time my Mum has had to go into nursing home as she has advanced dementia. Will last updated 2012 was read today and everything is going to my Mam. Assets were house worth €200k and investment account €65k both of which were in both their names, he also had his own bank account with €60k and two state saving bonds with €65k in his own name.

I am left gobsmacked that he didn't provide for me or his two grand children in his will. There was never any falling out between us.

Considering how prudent he was in saving over his life I feel stupid for presuming he would have sorted this some way better.

We are currently trying to get fair deal scheme for my Mam but as you can imagine with both events happing together I am overwhelmed.

degrassinoel

free legal advice centre line - not sure how much use they'd be to ye, but they'd be able to give you a good idea of what/where/who to go to next if you don't get a reasonable reply on here

Sorry for your loss Tony :/

01 - 906 10 10

AnRothar

My condolences on your loss.

Just an observation based on my father passing.

He left everything to our mother with the intention that when her turn came, she would divide it out equally.

It's my understanding that the reverse was also true.

My father-in-law had intended something similar but that's another story.

Your own parents probably intended to provide for themselves first and once they no longer needed it, the assets could then be distributed.

I suspect it was not a deliberate slight to you (or your children), but a pragmatic decision made based on circumstances as they pertained a decade ago.

Circumstances may have overtaken them.

Chris_5339762

I'm honestly not seeing a problem here unless I'm missing something. The father dies and the money goes to the mother. Vice versa.

Then when the mother dies, it is up to her to distribute the money as she sees fit. Thats normal. Split between children.

It would be very unlikely for a father to NOT pass the money to the mother, and instead to give it to children. Perhaps (I really don't know) it would have been more favourable for fair deal. Also if a child then married and divorced, the house would split 50/50 between child/partner and there is every chance the mother would be just f*cked out of the house as she has no say in it.

Miaireland

This is quite normal in my experience. Normally a spouse leaves everything to his or her spouse and then they will it to their children on their passing.

https://www.boards.ie/discussion/comment/119611219#Comment_119611219

It would appear that the mother might not have made a Will and no longer has the capacity to do so.

Pawwed Rig

https://www.boards.ie/discussion/comment/119611299#Comment_119611299

Then everything goes automatically to the children on her death

yaknowski

He may have presumed that your mother will give everything to you anyway.

Contesting will eat into the estate and as an only child you will get the estate anyway. Granted the process might be a bit more laborious given your mother might die intestate.

Note: Last Wills are effectively an honour system. If your mother is beyond capacity now, there's nothing really stopping you creating and backdating her Last Will. After all, nobody is going to contest it if you're an only child.

Deeec

Im sorry about your dad - dealing with these issues makes grieving so much harder. My parents will is the same - their assets are left to each other. The solicitor advised that the surviving spouse will decide what happens the remaining assets. Probably not the best advice but thats what they were told was best, I wouldnt blame your father - he probably just followed advice. Im sure there has been cases where a spouse has been left with very little because children were left assets - so I guess its to avoid this happening. Its not much good when the spouses are very elderly though.

Im not sure what contesting the will is going to achieve though in that you are an only child and will be entitled to whats left after your mums death anyway - it would be a slow process and the only benefit in doing this would be to reduce your mums assets for the fair deal assessment. It does make the fair deal scheme trickier though and the timing of your dads death is awkward. I went through similar with an uncle of mine and fair deal is a nightmare.

Do you have Power of Attorney for you mum?

Donald Trump

He left it to your mother - not the local dogs and cats home. It's exactly what I'd have been expected would have been done.

Thoie

Sorry for your loss, and all the added stress of sorting out a nursing home at the same time. As everyone else has said, that's perfectly normal, and is what has been done in my family as well. The first spouse to die left everything to the other, and eventually it will come to the children. Even if your mother dies without a will, everything will come to you eventually. Talk to the solicitor about the situation - if you don't already have power of attorney, someone will have to be assigned, as there will be bits of paperwork that your mother will need to sign, that she may not be capable of doing.

Donald Trump

I don't know how it works as regards Fair Deal if someone refuses/waives an inheritance. i.e whether it would be beyond the reach of the scheme. I suspect that is the issue here. Which would be perfectly understandable. FD might hoover up that cash which could have went straight to the child

There is a fallback for "proper provision". Section 117. May or may not be applicable.

http://revisedacts.lawreform.ie/eli/1965/act/27/section/117/revised/en/html

C3PO

OP - thankfully my parents are both still alive but I know that their wills are as described in your case with each being the sole beneficiary of the other. I understand that this is quite normal in Ireland.

Jim_Hodge

Your father's will is perfectly normal and there is really nothing to contest.

NSAman

Why bother eating into your "inheritance".

Mum got everything after dad died, simple. Nothing abnormal about that. Your mother may not be well, but that doesn't automatically grant you inheritance rights. Once mam passes, then yes.

Seems a little bit "gold diggery" to me to contest a perfectly good will....

Jellybaby_1

https://www.boards.ie/discussion/comment/119611298#Comment_119611298

This is basically what we have done will our wills. However, after reading the OP, I'm beginning to wonder should we insert a clause if the remaining spouse becomes too incompacitated to make any adjustments at the end. You've got me thinking.

Deeec

https://www.boards.ie/discussion/comment/119614030#Comment_119614030

The OP isn't being a gold digger. The ops mothers nursing home will be paid for through the fair deal scheme. Under this scheme the more wealth or assets she has the more she will have to pay and less will be paid by the HSE. This is the OPS concern as far as I can see - he is wondering if anything can be done to keep some money away from fair deal scheme . If his mother lives a long time the OP could inherit very little after his mother's death.

With fair deal a person who can't afford to pay anything gets the same care as someone who has wealth and lived frugally - it's not really fair at all. Its something the OPs parents probably never considered.

Donald Trump

https://www.boards.ie/discussion/comment/119614030#Comment_119614030

Why bother eating into your "inheritance".

I gave a possible theoretical explanation above. If a person goes into a home under the Fair Deal Scheme, then cash that they might inherit will be assessed as part of their means and may be used to pay towards their care.

That means that that cash may not be there later to be passed on to a third party. Whereas if it were left directly to the third party, bypassing the person in the home, the third party could spend it on coke and hookers and let the State pay for the care. I am not sure how it works for spouses though i.e. whether the legal right share would have to be claimed for example.

TonySoprano74

Hi,

Thanks for your replies. I have no real knowledge or experience of the Irish legal system and can see now that the will seems pretty standard, my mother's will was also revised at the same time as dad's.

My dad brought my Mum to solicitor a few months back and set up enduring power of attorney. Some friend or perhaps his doctor must have advised him to do this, he did tell me that the solicitor was advising against the enduring power of attorney but my dad insisted this was done ( don't know why solicitor would have advised against setting this up)

I am a little disappointed that perhaps his solicitor didn't make him aware what was going to happen to all their cash assets in the event of his death and the impending reality of my mother's health deterioration.

I have spoken with the financial advisor that set up their investment fund and he says that as it is non cash the HSE cannot touch it as its in both their names.

He was also shocked that my dad had not accounted for the fact that in leaving everything to my Mam this exposed their assets so openly to the fair deal scheme.

I was speaking to the HSE financial representative today and at the beginning of the conversation she was like gimme gimme gimme looking for information. She did calm down a little bit once she realized the full story of why I was slow compiling the details of his assets.

I am not a gold digger as someone suggested, my heart is broken and hope others that read this might learn something from my experience.

Jim_Hodge

https://www.boards.ie/discussion/comment/119614800#Comment_119614800

I have spoken with the financial advisor that set up their investment fund and he says that as it is non cash the HSE cannot touch it as its in both their names.

He's wrong. All assets, above a threshold, are valid for Fair Deal calculations. Investment accounts and State Savings are also not non cash assets. Plus, it will now all be in your mother's name. BTW Fair deal doesn't take all of it by any means.

Marcusm

https://www.boards.ie/discussion/2058263075/contesting-a-will

You’re an only child, your mother has not made a will and thus, upon her death, her assets will devolve unto you unless you have preseceased her.

Are there any particular circumstances establishing a failure to make “adequate provision” for you, did you benefit from an education? Might your father have helped you acquire a home or assets or provided some other support?

In the alternative, do you believe that your father’s will is invalid as he lacked capacity when he made it?

Unless there are special circumstances I find it hard to conceive that an Irish court would overturn a will which left the entire estate to the surviving spouse. While it may be perceived as bad planning that Fair Deal or nursing home costs will be borne by those assets when they might not have done so if they had been given to you at an earlier date.

Donald Trump

Anyone know what would happen if the mother waived her inheritance? I understand she might be be able to do that here due to health conditions. It is a theoretical question.

If I remember correctly, a person can also choose to take their legal rights share in lieu of the bequest (would usually be invoked when the LRS was greater than the bequest). When they take the LRS, they don't get the things that were left to them in the will

https://www.boards.ie/discussion/comment/119614065#Comment_119614065

Our Wills are called Mutual Wills. The surviving partner gets everything, but on their death, the children inherit between them. Our situation is slightly different in that it’s my second marriage and the children are from my first one. The terms cannot be changed without both of us agreeing to them.

Jim_Hodge

https://www.boards.ie/discussion/comment/119616409#Comment_119616409

For the very reason of her particular health issues she couldn't waive an inheritance.

Donald Trump

https://www.boards.ie/discussion/comment/119616514#Comment_119616514

Hence why I explicitly said:

I understand she might be be able to do that here due to health conditions. It is a theoretical question.

I asked what would happen if she waived it.

Jellybaby_1

https://www.boards.ie/discussion/comment/119616477#Comment_119616477

Yes, exactly as we have done. The children will inherit all when the second of us departs.

Jim_Hodge

https://www.boards.ie/discussion/comment/119616518#Comment_119616518

And I only told you.

handlemaster

Agree with comments normal to leave to spouse.

Donald Trump

https://www.boards.ie/discussion/comment/119618939#Comment_119618939

You interjection was an irrelevant nonsense response to my post.

BTW, the forum is "Legal Discussion" not "Legal advice for specific circumstances". I even said it in the post that it was a theoretical question.

Montage of Feck

My parents are talking about handing over the house to me already to ensure the fair deal scheme get's nothing. Little do they know the minute I get it I'm selling it from under them and going on a bender! Muhahaha!!!

Thoie

https://www.boards.ie/discussion/comment/119619046#Comment_119619046

Before you spend it all on coke and hookers, check out the gift clawback clause for fair deal.

coylemj

https://www.boards.ie/discussion/comment/119616409#Comment_119616409

If a legatee waives their inheritance, it goes into the residue. If there is no provision for the residue, the waived asset is treated as if the testator made no will so it will be disposed of based on the rules of intestacy.

But in this case, that would land the asset back to the mother 🙄

Donald Trump

https://www.boards.ie/discussion/comment/119756390#Comment_119756390

I don't think that is correct. It would mean that an individual would never be able to waive their legal rights share for example because it would keep coming back to them.

Peregrinus

https://www.boards.ie/discussion/comment/119756439#Comment_119756439

Yes, that is what happens. If you waive your entitlement under a will, it goes to whoever would have got it if you hadn't been mentioned in the will — which might be you anyway. If you want it to go to someone else who wouldn't ordinarily get it under the will, you can't acheive that by waiver - you have to accept the bequest, and then gift it to them.

Which means, of course, that it will be taxed as a gift from you to them. But that makes sense because, in reality, that's exactly what it is.

Donald Trump

https://www.boards.ie/discussion/comment/119758964#Comment_119758964

In OPs case, they are a child of that testator

Maybe your dad felt he was doing the right thing, ie he has the means and therefore wants to pay for your mothers care and not expect other tax payers to do so.

Peoples attitude to this scheme is shocking, as soon as they see their inheritance at risk they go into asset protection mode, they fear missing out on the extension they always planned for. The country’s population is getting older and similar to the pension age we need a mature conversation. It’s called a FAIR scheme for a reason, ie pay your fair share if you can afford it

Claw Hammer

https://www.boards.ie/discussion/comment/119758964#Comment_119758964

You can waive your entitlement under the will and simultaneously waive any entitlement under intestacy. The bequest then goes to the next in line.