Will Question.

Jumpy

Hi All,

A hypothetical situation outside Ireland, but I would like to see how the Irish Legal system would view this issue.

A woman upon receiving a divorce notice while in hospital with a serious mental illness agrees to leaving a third of her estate to her ex-husband to prevent a legal battle and further mental decline. This is done out of fear of losing her house, which was paid for in full by the woman before ever meeting ex-husband. However the ex-husband has maintained the house for 20 years while living there so believed that he had a claim.

Divorce now settled.

Woman now does not want her ex-husband to receive anything upon her death and wishes her entire estate to go to her children.
She believes she was not in the correct mental state to agree to said terms while unwell.

However, she is very careful about her mental state now, and believes a legal battle would bring her down again.

The woman has come up with two possible solutions

a) Transfer largest percentage of estate to children before death. However she has concerns that ex-husband will chase children for house percentage.

b) Write a witnessed letter to be presented upon her death that the divorce settlement was done during a time of mental instability and therefore is invalid. However she has concerns that this will hold no legal water after her death.


What do you think?

McCrack

The obvious solution is to revoke the Will and execute another. Under Irish law the ex-spouse has no automatic claim to a deceased ex-spouses estate.

I would not consider anything else.

Jumpy

Hi McCrack, in this example the 1/3 agreement was part of the divorce settlement.

dermot_sheehan

Depends if the 1/3 was transferred to the ex by intervivos transfer.


If it was then there is nothing the woman can do about it except to try and have the divorce settlement set aside, which would be incredibly difficult, cause as regardless of her mental state, she most likely had her own legal advisers.

If it was an agreement to write her will a certain way, I stand to be corrected on this probate issue, but my understanding is with the exception of mutual wills, the wife is perfectly free to revoke her will and create a new one (a mutual will is where two parties create wills which are stated to be mutual and upon the death of either party, the other party is estopped from revoking that will and creating a new one).

The husband can have his rights under s. 18 of the Family Law (Divorce) Act 1996 preserved so that he can apply to court within 6 months of his ex wifes death for provision out of her estate.

Jumpy

No, this is only to be taken on the event of her death. I assume inter vivos would only be if the estate was transferred in her lifetime.

Surely a mutual will would be void if the signatory is not of sound mind.