My father died 18 years ago. He left a will leaving his entire estate to my mother. The will was never disclosed. My brother told us that when he died, there was no will. Three years ago, we went to the public office only to discover my dad’s will. He left everything to my mum: on her death everything was to be split between his children.
I took it to a solicitor who informed me that it appeared there might have been a fraud committed but that it would be very hard to prove.
My father’s bank account was still active at this stage by fluke. When the bank was approached, they closed his account immediately refusing to give us any information.
The solicitor has stated that it would be hard to prove and I got the impression he didn’t want to go any further with it. Can you please help as we know he took everything? My mother got nothing, only an endowment policy that was part of the house.
We are desperate to find the truth as my mother passed away this year.
Mr R.C.
I clearly have not seen the precise wording of your father’s will and you say nothing about any will left by your mother. There are also inconsistencies even in your letter. All told, my instinctive reaction is that your solicitor is correct.
Challenging wills can be a tricky business. Pursuing civil fraud proceedings is even more fraught. But the biggest issue for you here is time.
We are talking about events that go back 18 years. The first thing any court would likely want to know is how come it took you so long to act if you suspected fraud.
It’s not an area where I have any great insight but I understand that courts would generally expect an action to be taken within six years. Now this might date from the alleged wrong or from the time you found out about it but my understanding is that this latter provision relates to when you might reasonably have been expected to find out about it, not when you simply eventually decided to inquire.
Relevant here is the claim that your brother said there was no will. This being the case, the rules of intestacy would have dictated how your father’s estate was to be divided and each of you would have received something.
The fact that this did not happen nor did you receive any communication regarding the estate would likely be taken by a court to indicate that, if you had any concerns, these should have been apparent long before now.
In any case, from what you say, your father’s will was available in the Probate Office. That means the executor – your brother or whomever else it might have been – did secure probate on the estate. Exactly when that happened is not clear from what you say but it is most unlikely to have been three years ago. The presumption is that it would have been a year or two after your father died.
The fact that your father’s bank account was still active until recently and, presumably, still in his own name is definitely odd. That is something that should have been sorted as part of the probate process.
You say the will was not disclosed at the time your father died but, as you were not beneficiaries, there would have been no reason to notify you in relation to the will. Returning to your brother’s claim that there was no will, clearly this is at odds with the fact that a will subsequently appeared in the Probate Office but it could have been as simple as your brother wanting to be left in peace to sort out the estate without constant inquiries from family.
The will also left everything to your mother. While she might have been easily led by your brother, if indeed she was, that does not, in itself, suggest fraud. You mention that your dad’s will provided for everything to be divided among the children when your mother died. What’s unclear without the precise wording is whether your mother had only lifetime use of what she was left by your father or whether she had full control and ownership.
The latter would be more usual and, in that case, it would be your mother’s decision what happened to those assets during her lifetime and in her own will. You make no mention of your mother’s will, which is odd in the circumstances. Again, if she left no will, you should all be entitled to a share in whatever she had at her death, which certainly seems to include her home at least.
It is true that the legal liability of an executor for failings in carrying out their legal duties in respect of a will do not expire and if there was clear negligence or error in the process, they could be pursued but given that everything was to go to your mum and she is no longer around to state what she did or did not get, it would be very difficult to make a case.
You “knowing” your brother took everything and proving in court that he did so in a way that was illegal are two very different things.
I doubt that pursuing this is going to deliver the sort of outcome you hope for and it could prove an expensive exercise as well. I can fully understand why your solicitor advised that proving liability in an action like this would be very tricky and also why they would not want to pursue it.
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
