My uncle in the attached will had no wife, spouse or children. My mother A, mentioned in the will, passed away as did one of her siblings B before my uncle died.
My uncle’s other sibling passed away not long before he amended the previous will, around 2009. We were told by my mother that he changed that will at that time to include the estate of his then recently deceased sibling C, so that their children would not miss out on inheritance. Unfortunately, nobody had the foresight to do the same for my mother and my Uncle B when they passed away.
The assets are a house and farmland.
We were told by my solicitor that the counsel’s advice from the solicitor who wrote the will and who is also administering the will is that we are not entitled to anything from the estate. The executors want to carry out the will as that solicitor advises.
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However, my solicitor, after getting their own counsel’s opinion, tells us we are legally entitled to an equal share of two-thirds of the estate along with all of my uncle’s nephews and nieces, which concurs with an article you wrote. However, the other solicitor has apparently applied to probate.
My thinking is that the other solicitor may have an ace up their sleeve and hence a good reason to go to probate. For example, perhaps they have instruction notes taken when the will was written, stating that my uncle may have wanted to leave us out of the will when my mother passed away (this is unlikely as my uncle often spoke to my mother to remind her he had left a will and where the solicitor was located). Do you think that could be possible? Alternatively, perhaps that solicitor just wants to have the case taken to court to make money. Do you think this could be the reason or could there be other reasons and if so, what?
I asked the executors to try to get hold of any instruction notes but they were unsuccessful and the solicitor told them the counsel’s advice the solicitor got was for the solicitor’s own information.
We have about two weeks to decide whether or not to issue proceedings as we let the caveat lapse about six weeks ago. I would not want to waste money on issuing proceedings and courts etc to lose on a weak case if the other solicitor has an ace up their sleeve. Can you please advise in a timely way, if possible, about whether we have a guaranteed win or a good chance to a claim on the will or whether it would be wiser to walk away?
Mr M.M.
Two things come to mind here. First, there are an awful lot of well-paid solicitors and counsel involved in this matter already so I’m not entirely sure what added insight into the legal issues you think might come from this column. Second, I think you might be doing a bit too much speculating about motivations and potential instructions.
You’ve helpfully included a copy of your uncle’s will so I can see that, apart from two bequests of €10,000 each to each of the executors, the rest of the estate falls into the residue. Under the terms of the will, this was to be divided between the two siblings living at the time the will was drawn up, including your mother, and the estate of the other sibling who had previously died. I have taken steps to anonymise the specifics of the case for the sake of privacy, and have done similarly with the solicitors in question.
You say that your mother — supported by her surviving sibling — told you that that your uncle had changed his will after the earlier death of his other sibling to ensure their children did not lose out on an inheritance when he died. It sounds reasonable and might well be exactly what he did. And that would lend strength to your suspicion that he would have wanted the children of the other two siblings to similarly benefit.
I think you are overthinking things when you suggest there may be notes alongside the will in the possession of your uncle’s solicitor
But the issue is that, in this legal document, he made specific provision that the share of the residue intended originally for the sibling who died before this will was drawn up be treated as part of their estate and divided according to any will they had left behind — or otherwise through the rules of intestacy. For whatever reason, he did not do the same in the case of the two siblings who were still living when this final will was drawn up.
Frankly, if it was his intention that the families of his three siblings should all benefit from his estate, he either did not explain this properly to his solicitor, or the solicitor did not draw up the will in such a way as to reflect those wishes. At this remove, it is impossible to say which and he is clearly no longer around to clarify.
If this goes to court, the court only has the wording of the will to determine your uncle’s wishes. And the wording of the will makes provision for the family of the sibling who had already died by the time this will was drawn up but no such provision for the families of the two siblings still living.
This is important because the standard rules under the Succession Act is that if a person benefiting under a will predeceases the person who has drawn up the will, their inheritance goes back into the residue — unless specific provision is made otherwise. It certainly does not automatically go to the families of the now dead beneficiaries.
In this case, your uncle’s will would have had to say something like “or, in the event they predecease me, to their children/family/estate ...”. It doesn’t so, on my understanding, the share that was coming to your mother and her sibling falls back into the residue.
Then we come to what happens to the residue. In the case of your uncle’s will, it is in the residue that his two siblings and the estates of the dead sibling are provided for — with the proviso that they inherit in equal parts. My understanding of the Succession Act is that if there are any inheritors left standing so to speak, then they are the ones who share the residue in equal parts.
In this case, that would mean that, after the two bequests to the executors, the rest of the estate is divided according to the wills of deceased sibling C — or by the rules on intestacy if they had no will. In any case, unless the will of that sibling made allowance for the children of their other siblings — A and B, who had been living at the time this will was drawn up — then I do not think you will stand to benefit from the will.
But this is obviously not clearcut. Your solicitor and the solicitor who drew up the will and is now advising the executors — plus their respective counsel — have interpretations of the Succession Act and the wills that are diametrically opposed.
The advice your solicitor has got seems to suggest that the inheritance originally due to your mother and the other sibling living at the time the will was drawn up should not go to the estate of the other sibling but be treated under the rules on intestacy. I don’t see how this would be the case but, even if it were, the children of the two siblings alive when the will was written would not divvy up the pot between them; instead it would be divided up among the children of all five siblings, so you and any siblings you have would share one-third of two-thirds of the estate.
You refer to a piece I wrote previously but I think that had to do with bequests where there was no provision made for a residue which would be different.
There are a couple of other things here that puzzle me.
First, I think you are overthinking things when you suggest there may be notes alongside the will in the possession of your uncle’s solicitor to the effect that he may have wanted to leave you out of the will. In what seems a fairly straightforward document, this seems far-fetched. So too is the notion that the solicitor is simply spoiling for a legal battle to maximise their fees. I’m not saying this might never happen but it would be exceptional.
If this solicitor, who is administering the will on behalf of the executors, genuinely believes they are acting correctly, they have a duty to proceed and not to unduly delay probate.
But I am interested in the idea that your uncle’s solicitor, who is now advising the executors, is not prepared to engage with them on the detail of the counsel’s advice the solicitor has received.
If the cost of this advice is charged against the estate, as would be standard practice, it would seem to me that the executors in carrying out their legal function should have access to it — and to any instruction notes that might be pertinent to interpreting the will. After all, it is they who will be legally liable for failure to properly execute the estate.
The caveat to which you refer is a temporary legal block on someone seeking probate for an estate, so the clock is ticking now that this has lapsed. You are looking to a journalist for odds on the winnability of a legal case on which legal minds are already sharply divided. There is no guarantee, that’s for sure, and unless there is relevant information not disclosed or my reading of the Succession Act is wrong, I think the odds might be stacked against you.
Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to dominic.coyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice
