Can a normal lay person write to a solicitor or does communication always have to go via another solicitor?
I would like to know if it is possible to get a copy of any previous wills my mother made before her final one. Can I write directly to my mother’s solicitor or do I have to get another solicitor to do this?
Depending on the content of the previous will, I would then decide on engaging a solicitor further.
Ms J.McM., email
Oh there’s nothing to stop anyone writing to a solicitor. Whether it will get you anywhere is another question.
This is an issue that cropped up about a year ago. I’m assuming from your question that you have sight of the current will. What’s not clear is what your status is in all this? Are you an executor or simply a beneficiary – disappointed or otherwise?
It doesn’t change the rules but might impact the process from your perspective.
The first thing to acknowledge is that the only will that counts is the last will your mother made. It supersedes and renders null and void all previous wills.
And unless you are an executor or the will has already gone to probate, you don't even have any right of access to that. Once probate has been granted the will is accessible through the probate office online.
It seems to me that you are fishing here. You want to check and see if a previous will was more generous to you or less generous to someone else before potentially launching a legal challenge to the current will. Perhaps your mother promised you a particular bequest – a particular ring, a piece of art or a loved piece of furniture – and it has now gone elsewhere because that bequest was not specified in the will.
These things happen, mostly because people simply forget. If my own mother was to accurately recollect all the small family bits and pieces that she has promised to one or other of us, she’d be a computer. You cannot put much store by passing references. If it is not in the will, it is most unlikely you will be able to force the issue.
Challenging a will
The grounds for challenging a will are very specific and, as you would presume, are set down in law.
Broadly these fall under four categories and are to be found in the 1965 Succession Act.
First up, if the will is not properly drawn up, signed by your mum in the presence of two witnesses and by those witnesses, neither of whom can be beneficiaries, the will can be challenged on the grounds of validity.
More commonly, people will attempt to challenge wills on the grounds either that your mum was not able to understand what she was doing by way of age or infirmity, such as suffering from dementia or Alzheimer's for instance, or that she was put under undue pressure by one or more people in drawing up the will in its current form.
Finally, a child who feels they have not been reasonably provided for in a will can take a claim.
There are also provisions for spouses to enforce a legal right share of at least one third of the estate where the dead person had children, or one half where there are no children. Separately, more recent legislation – the 2010 Cohabitants Act – allows cohabitants to claim a share of an estate where they have lived with the dead person for at least two years (here there are children) or five years otherwise. Clearly, these last two issues don't relate to your relationship with or expectations regarding your mum.
One last area providing an opportunity to challenge a will is something called proprietary estoppel. This is a very niche area. You need to prove that you were promised a certain inheritance that failed to materialise, that you relied on that promise and, in so doing, put yourself at a disadvantage.
The common example is of someone who is promised a family farm and subsequently works on the farm at below market rates for years or otherwise misses out opportunities they might have taken – such as a college education – only to find the will does not leave them the farm.
Evidence
Of course, taking a claim and proving it are very different things. And despite what some lawyers may tell you, it is not easy to overturn a will – and rightly so. You need evidence to show undue pressure or that someone was not of sound mind.
More particularly, if you are arguing that you were not reasonably provided for as a child, your current age and circumstances will be considered along with any provision your mum may have made for you during her life. Essentially, you need to persuade the court that your mum failed in her “moral duty” to make proper provision for you.
It’s important to remember that there is no automatic right for a child to receive any inheritance.
How long you have to challenge a will depends on which particular grounds you are claiming but, in general, action needs to be taken within six months of probate. For estoppel, I gather you may have a couple of years.
The key thing is that it is only if a will is successfully challenged on grounds of validity of the will, undue pressure or unsound mind that you start considering a most recent will drawn up before the disputed will. Well, you don't; the executor does, assuming that it can be found.
If not, and if the only available will has been ruled null and void, the estate is treated under separate rules governing cases where people die intestate – ie without any will.
That does set down certain legal provision for inheritance. If your mum’s partner or spouse survived her, they are entitled to two-thirds of the estate with the rest divided among the children. If no spouse/partner survives, the estate is divided equally among the children (with the offspring of any children you predeceased your mum splitting their parent’s share).
Solicitors
But getting back to your original question, there is nothing in law to stop you writing to a solicitor. And there is certainly nothing to say that you must engage a solicitor in order to communicate with another solicitor.
However, these folk speak a language that is all their own, with everything carefully parsed to ensure it is legally watertight – at least if they are doing their jobs well. It may be that you, as a lay person, approach with what seems a simple query and get back an answer that leaves you none the wiser.
That’s why most people engage solicitors to speak with other solicitors, especially if they are planning a legal challenge.
And, of course, you need to remember that your mother’s solicitor, who presumably held a copy of this will, has no obligation to you or anyone else outside his client – your mother.
One last thing: recourse to law costs money. If you challenge a will, the legal costs will normally be set against the value of the estate as long as the challenge is seen as reasonable. However, it is open to the courts to decide each case and certainly if the challenge was not seen as reasonable, you could be facing significant legal costs.
Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street, Dublin 2, or email dcoyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice. No personal correspondence will be entered into
