what to do.....

Mac daddy

My father recently passed away, granted I haven't spoken to the man in about three years ( huge fight about my other brother at the time )
He re-married about 10 years ago and didn't have anymore kids so it's me & my brother and his wife who are left.

I got the phone call from her to tell me what happened, now how do I approach this with regards to wills ect?
Do I contact his wife and ask her or do I contact a solicitor and let them handle it?
He left myself and my brother when I was 11 and my brother was 9 and he hasn't spoken to my brother in close to 16+ years.

I just want to get it all over and done with so I never have to see or speak to that woman again and I really don't want to have to ring her up either.

coylemj

You first of all need to find out if there is a will. If he died intestate (i.e. leaving no will) then his wife is entitled to two-thirds of the estate and the children the remaining one-third so you and your brother would get one-sixth each.

As you and your brother are obviously now adults, you wouldn't have any automatic right to inherit in the event that he did make a will so he could have left everything to the wife in which case you would have no further involvement with the matter.

However as you were 11 and your brother 9 when he left you, even if he left the wife everything in his will, you and your brother could still make a claim on the estate under S.117 of the Succession Act, 1965.

http://www.irishstatutebook.ie/1965/en/act/pub/0027/sec0117.html#sec117


117.—(1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.

(2) The court shall consider the application from the point of view of a prudent and just parent, taking into account the position of each of the children of the testator and any other circumstances which the court may consider of assistance in arriving at a decision that will be as fair as possible to the child to whom the application relates and to the other children.

(3) An order under this section shall not affect the legal right of a surviving spouse or, if the surviving spouse is the mother or father of the child, any devise or bequest to the spouse or any share to which the spouse is entitled on intestacy.

(4) Rules of court shall provide for the conduct of proceedings under this section in a summary manner.

(5) The costs in the proceedings shall be at the discretion of the court.

(6) An order under this section shall not be made except on an application made within twelve months from the first taking out of representation of the deceased's estate.

If there is a substantial estate and you and your brother feel that your father didn't make proper provision for you then you could make a claim under S.117, you'll need to talk to a solicitor - not the one acting for your stepmother.

Mac daddy

Hi coylemj,

Many thanks for the info I will have a further read and chat with the brother later on tonight to see what he wants to do as well.
Just a question with regarding the actual will itself, what would be the best way to find out if he did leave one or not?

Do I ring her up and ask her or can I request a copy if there is one?
Because I don't trust her at all...

coylemj

You can ring her up and ask her but can you believe anything she says? If there is a will and she is named as the executor and something was left to you then she has a responsibility to hand over your bequest when she gets the Grant of Probate.

If your father left a modest estate which is just enough to keep your stepmother comfortable and you don't want to stake any kind of claim then you just do nothing. If on the other hand he left a decent estate and you think you and your brother deserve a slice of the cake because of the way he left you at a young age then you need to consult a solicitor.

Your stepmother will in all probability start the process of probate. Unless she is a complete idiot she probably persuaded your father to make a will leaving everything to her. In that case she will kick off the process of probate in order to get money released from the bank and the deeds of the house put in her name.

If you intend making an application under S.117 then your solicitor will advise you of the mechanism by which you go about this. It will probably start with the solicitor notifying the local probate office that you are taking such proceedings and the probate office will probably then hold off giving the Grant of Probate to your stepmother until the application under S.117 is dealt with. Effectively the estate will be locked down until your application is approved or rejected.

So your options are (1) do nothing or (2) see a solicitor.