My mother died 10 years ago and my brother died four years ago. My brother was married with no family and had his own farm. His wife is now looking for her husband’s share of my mother’s property.
My mother died intestate and had dementia. Can a daughter-in-law claim? She is no blood relation and there are no children. I have checked everywhere I can think of and there is nothing to state anywhere that she can. If there were children, they would be entitled to their mother or father’s share if we were siblings, but no mention of daughter-in-law.
My brother never requested a claim of any sort before he passed on his mother’s property. He would maybe in life have been an expectant beneficiary. There is something in the inheritance Act of a mention of 50 per cent of a husband’s inheritance.
Mr N.W.
Oh, this is messy. And it appears on the face of it to be a textbook example of why the “informal” arrangements made within families on issues of inheritance, land, property, etc are so dangerous. It is also a wake-up call to the hundreds of thousands of adults across the State who have never made a will.
Intestacy is a legal concept with very clearly defined rules about what should happen – none of which appears to have happened in this case. I have no idea how much land is at stake or what its value is but it seems to me that your sister-in-law might well have a statable case simply because everyone just decided to let sleeping dogs lie.
The challenge for her is that claims need to be made within six years of the time her husband was due to receive a benefit under the estate. I’m conscious that, back then, it would have been up to her now dead husband to claim rather than her. But it will very likely mean she is statute barred.
In the normal course of events, a daughter-in-law would have no automatic claim on an estate – either because she was left out of a will or, as here, where someone dies without a will.
As you say, she is not a blood relation, reflected in the fact that anything she might have been left in a will by your mother would have been subject to the lowest of the three tax-free thresholds available – currently €20,000 but an even more modest €15,075 when your mother died a decade ago. The fact that she has children or not would also be irrelevant unless there had been a will which left something to their father who had predeceased his mother, none of which happened in this case.
So, if things had been done as they should have been, your sister-in-law would have no possible claim against her mother-in-law’s estate. But because everyone decided, for whatever reason, to stick their heads in the sand and do nothing to regularise your mother’s affairs she might have a claim now.
When someone dies intestate, normally a close relative will apply to the court for a grant of administration – the legal power to manage the affairs of the person who has not left a will, or where a will is invalid. Court rules set down that “persons having a beneficial interest in the estate of the deceased shall be entitled to a grant of administration in the following order of priority”.
Top of the list is a spouse or civil partner, then a child, the children of a child who died before the intestate person, a parent, a sibling, children of predeceased siblings, nephews and nieces, grandparents, uncles and aunts, great grandparents and then “other next-of-kin of nearest degree (whether of the whole or half-blood)”. So, essentially, anyone who might have a claim on the estate under the Succession Act.
If more than one person in the same group applies, the court will determine whom should have the responsibility. If no one applies, the State can nominate someone, or a creditor of the estate (someone owed money by your mother) can apply for letters of administration or have a solicitor do it on their behalf.
As you can do so, there is no role there for an in-law – ie someone with no blood relationship to your mother.
However, equally, there is no provision in Irish law for the who process to be simply ignored, which is what seems to have happened here. Before the Succession Act, as I understand it though it was well before my time, it was common enough practice for land to simply devolve to a first born but that is back before 1963 and certainly does not apply now.
I suspect, though I cannot be sure obviously, that you and your brother decided between yourselves that you would have control of your mother’s land without going through any official process.
That might have worked if your mother had left a will leaving him the land but, in the absence of that will, the law determines how her assets are to be passed on. And in this case, where it appears there were two sons – you and your now deceased brother – the estate should have been divided equally between you. You don’t get to choose otherwise.
Could that have happened and your dead brother then gifted his share back to you? Sure, though that would likely have had tax implications for you.
Could he have renounced his claim formally? I have not heard of that happening in cases of intestacy but I see no reason why it should not be possible.
But the key thing in either of those scenarios is that there would be a formal paper trail available.
If that were so, your sister-in-law would get nowhere with her claim. However, if you and your brother simply ignored the Succession Act and the requirements of dealing with your mother’s estate in the six years before your brother died, she might well find a solicitor prepared to argue that she has a claim due to unreasonable delay on the part of you and/or your brother. But she still has to get past that six-year limit on claims.
Her argument, presumably, would be that if the estate had been managed in a reasonable time frame, her husband would have inherited half of your mother’s estate and that might then pass to her on his death – presuming that his will, if he has one, does make her his beneficiary generally. Even if he dies intestate, in a situation where there are no children, she would be the sole beneficiary of his estate.
But I suspect the courts would be reluctant to do that. As it stands, it would appear that you have ownership of the land through adverse possession because of your dead brother’s failure to press his case before he died.
The 50 per cent rule you refer to in inheritance law is, I presume, the legal right share. That says your sister-in-law is entitled to at least half her husband’s estate. That really only applies where there is a will that leaves her less than that share. Under intestacy she will get at least two-thirds of his estate even if they have children. Anyway, it is not relevant to this case.
And, just to clear up loose ends, your mother’s dementia is also irrelevant. Either she made a will before she lost the capacity to do so or her estate is treated under intestacy, as is the case here.
So it is, as I said at the outset, messy. Needlessly so, really. You and/or your brother could have sorted out your mother’s estate years ago and then made whatever arrangement you chose between yourselves, subject to tax law. But if your argument is that neither of you did anything for a decade about your mother’s affairs but that, regardless of that, your sister-in-law should have no claim, you might just be lucky that she has run out of time to make such a claim.
But if she is determined to proceed, it could be expensive regardless.
It is long past time, really, that people in Ireland got wise to the fact that you cannot simply ignore the law when it comes to death and the passing on of family assets. And your situation is a good example of why. But for the six years, you could well be facing the prospect of losing up to half the family farm.
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 with a contact phone number. This column is a reader service and is not intended to replace professional advice
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