Inheritance and wills particularly sensitive area if there is a fractured relationship

Inheritance and wills particularly sensitive area if there is a fractured relationship

Dear Karen,

My husband and I are getting on in years, and we wish to put wills in place, for our own peace of mind.

While we love our youngest son dearly, he is a very troubled young man, who has put us through a lot of misery over the years.

He has trouble with drink and gambling, and had a few brushes with the law on-and-off since his teenage years.

There was a short period in his early twenties when we thought he was going to get his life together.

We paid for him to go to college in Dublin as a mature student, and bought him a little flat to live in.

Unfortunately, when the recession hit, his girlfriend at the time decided to move to Australia. Soon after, he dropped out of college and started drinking heavily again.

He used the flat as collateral for a bad business venture, a few years ago, and lost everything.

We have gone to Dublin several times to try and convince him to move back to the family farm, where we can keep an eye on him, but to no avail.

It seems like all our good intentions have come back to bite us.

My husband is very resentful towards our son for all the hurtful things he said to us last time we spoke.

He basically blamed us for everything that has ever gone wrong in his life and told us we were terrible parents.

My husband always thought he would leave the farm between our two sons, but now he is not so sure.

He is thinking of leaving the farm solely to our older son.

While we will always love our youngest son dearly, we feel like we have given him enough chances to make something of himself, and every opportunity has been squandered.

To make a long story short, we are unsure if we wish to leave him out of our wills entirely, but we do feel that he cannot be trusted with the family farm.

Are we obliged to leave him anything in the will?

Are there any safeguards we can put in place to stop him throwing money away, if we were to leave him something in our wills?

Inheritance and wills particularly sensitive area if there is a fractured relationship

Dear Reader,

Thank you for your query.

I am sorry to hear of this difficult situation between you and your son.

The issue of inheritance and wills can be a sensitive topic for many families, particularly when there is a fractured relationship, or a family member is living with an addiction.

Under Irish law, a child is not automatically entitled to receive anything from their parents’ estates.

However, this is an onus or a ‘moral duty’ on the parent to provide for their child. This can be achieved by means of a will, or by providing the child with adequate provision during their lifetime.

Section 117 of the Succession Act, 1965 gives a child the right to contest a will if they feel they have not been adequately provided for by their parents.

In order for a Section 117 application to succeed, the court must accept that there was a failure in your ‘moral duty’ towards your son.

In doing so, the court shall consider the application from the point of view of a prudent and just parent taking into account the position of each of the children, and any other circumstances it considers may be of assistance.

Only children can make an application under this section of the Succession Act, 1965.

The provision is not about equality or fairness between children, but rather the applicant child must establish that there was a need for provision to be made for that particular child greater than that made by the deceased, either during his lifetime or under the terms of his will.

Accordingly, feeling aggrieved that someone else has benefited to a much greater extent is not sufficient.

It is all-important to note that the Law Reform Commission has recommended that Section 117 should be amended so that its focus would be firmly on a needs based approach.

It shall presume that proper provision has been made by a parent for an adult child subject to three exceptions, as follows:

  • In the case of an adult child whose health needs or capacity has not been properly provided for in the parent’s will.

  • In the case of an adult child who has given up other opportunities in order to care for the parent in the parent’s last years.

  • In the case where the adult child shows that the parent left something that is of sentimental value

    If you do choose not to leave anything to your youngest son in your will, it would be prudent to seek proper legal advice from your solicitor.

    I would suggest that you compile a list of all the different gifts you have given to your son during your lifetimes, and set out in your will the reason why you have decided not to leave him an inheritance.

    Parents are naturally worried about leaving money or other assets to a child with addiction issues in their will, as this money can be simply used to feed their habit.

    If you were to leave your youngest son money in your will, you could potentially set up a trust.

    This would allow you to provide an inheritance for your son, and you could put measures in place to maintain control over how this inheritance is structured and given to him.

    This trust could be maintained by your other son and another family member, or a professional trustee could be appointed.

    Another option would be to provide him with a right of residence in your farmhouse for the rest of his life.

    While he would be free to live in your farmhouse rent-free, he would not own it, and would not have the power to sell it or transfer it to somebody else.

    While this is a very difficult situation, I think it would be best to consult with your solicitor and/or tax consultant with a view to establishing the best long-term plan.

    Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’.

    Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.

    Email: info@walshandpartners.ie

    Web: www.walshandpartners.ie

  • More on this topic

    Forestry KTGs and Green Cert changes can end fear of the unknownForestry KTGs and Green Cert changes can end fear of the unknown

    Land for sale partly zoned for residential housing outside DunmanwayLand for sale partly zoned for residential housing outside Dunmanway

    New EU Commissioner may pounce if live exports go wrongNew EU Commissioner may pounce if live exports go wrong

    Non-European Union markets rescue beef exportersNon-European Union markets rescue beef exporters

    More in this Section

    Forestry KTGs and Green Cert changes can end fear of the unknownForestry KTGs and Green Cert changes can end fear of the unknown

    Ireland’s first ever Animal Health Awareness DayIreland’s first ever Animal Health Awareness Day

    Legal advice with Karen Walsh: Guardianship it isn’t automaticLegal advice with Karen Walsh: Guardianship it isn’t automatic

    This week’s Agritechnica trade fair is a good place to check out the changing shape of tractorsThis week’s Agritechnica trade fair is a good place to check out the changing shape of tractors


    Lifestyle

    From Monday, November 11, RTÉ On Climate looks at issues affecting us all including Paul Cunningham’s report from the Arctic Circle.The Shape I'm In: RTÉ journalist Paul Cunningham

    Sex advice with Suzi Godson.Sex file: Hard to have sex when you don’t feel sexy

    I wish everyone could discover the magic of making a loaf of bread.Darina Allen: Preparing for National Homemade Bread Day

    More From The Irish Examiner