Will and lapsed gift (Money)

oscarb1974 · 03-02-2016 4:58pm #1

Hi. My father left me a gift which has lapsed since he originally made his will. He left me money in a bank account which no longer exists because his will was made over 20yrs ago and understandably the money was spent over the years. So basically he left his house to my sister (also the executor) which I have no problem with as she lived with him and cared for him throughout his life. As my gift is now in 'ademption' and no longer exists I am effectively left with nothing, so my question is do I have any legal basis to challenge my sister and have her give me this sum from her inheritance/estate?

ohnonotgmail · 03-02-2016 5:05pm

how come you havent received the gift up until now?

oscarb1974 · 03-02-2016 5:08pm

The gift was left to me in his will. The will was made over 20yrs ago, it doesn't exist now. My dad passed a few month's ago.

GerardKeating · 03-02-2016 5:09pm

oscarb1974 wrote: »

Hi. My father left me a gift which has lapsed since he originally made his will. He left me money in a bank account which no longer exists because his will was made over 20yrs ago and understandably the money was spent over the years. So basically he left his house to my sister (also the executor) which I have no problem with as she lived with him and cared for him throughout his life. As my gift is now in 'ademption' and no longer exists I am effectively left with nothing, so my question is do I have any legal basis to challenge my sister and have her give me this sum from her inheritance/estate?

Just to confirm,

Your Father made a will 20 years ago, and there was a bequest to you
20 Years later, your father dies, but the item bequest no longer exists

If this is the case, Sorry for your recent lost, but I doubt if you have any claim to anything.

ohnonotgmail · 03-02-2016 5:09pm

also, i dont think you are using the word ademption correctly. Cash gifts cannot be in ademption as far as i know. This only applies objects that have been bequeathed that no longer exist at the time of the persons death. Presumably the money was in the account at the time of his death. You need to find out what actually happened to the money.

ohnonotgmail · 03-02-2016 5:10pm

ah sorry, i misunderstood the OP. you were left a sum of money that your father didnt possess at the time of his death. In this case you are out of luck.

oscarb1974 · 03-02-2016 5:13pm

Hi, thanks for the reply. As far as I know the money was just spent over the intervening time, on medical expenses and college fees etc while he was alive. There was no money in the account at the time of his death. It was bequeathed to me in his will, he stated that iw as to be left x amount in x account but it no longer exists

oscarb1974 · 03-02-2016 5:27pm

GerardKeating wrote: »

Just to confirm,
Your Father made a will 20 years ago, and there was a bequest to you

20 Years later, your father dies, but the item bequest no longer exists

If this is the case, Sorry for your recent lost, but I doubt if you have any claim to anything.

Yes, exactly. A friend advised me that I may have the option of going down the legal route etc. I would be very reluctant to do this anyway but wanted to know either way, if only to put everything behind me and move on.

haveringchick · 03-02-2016 5:29pm

oscarb1974 wrote: »

Yes, exactly. A friend advised me that I may have the option of going down the legal route etc. I would be very reluctant to do this anyway but wanted to know either way, if only to put everything behind me and move on.

Are there just the 2 of you?

ohnonotgmail · 03-02-2016 5:29pm

oscarb1974 wrote: »

Yes, exactly. A friend advised me that I may have the option of going down the legal route etc. I would be very reluctant to do this anyway but wanted to know either way, if only to put everything behind me and move on.

legal route against who exactly?

oscarb1974 · 03-02-2016 5:33pm

haveringchick wrote: »

Are there just the 2 of you?

Three, another sibling was left nothing

oscarb1974 · 03-02-2016 5:34pm

ohnonotgmail wrote: »

legal route against who exactly?

Against my sisters estate , to reclaim this money from her share (house) as the original gift no longer exists

ohnonotgmail · 03-02-2016 5:40pm

oscarb1974 wrote: »

Against my sisters estate , to reclaim this money from her share (house) as the original gift no longer exists

it doesnt work that way. your sister was left the house. you were left a sum of money in an account. your bequest did not exist at the time of your fathers deaths so you cant receive it. This has no bearing on the bequest to your sister. Obviously you need to get this information direct from a solicitor but you have no claim against your sisters bequest.

oscarb1974 · 03-02-2016 5:45pm

ohnonotgmail wrote: »

it doesnt work that way. your sister was left the house. you were left a sum of money in an account. your bequest did not exist at the time of your fathers deaths so you cant receive it. This has no bearing on the bequest to your sister. Obviously you need to get this information direct from a solicitor but you have no claim against your sisters bequest.

I suspected as much but if anything just wanted to know for sure and move on. Thank you sincerely

stringy · 03-02-2016 7:11pm

Check out s.117 of the Succession Act 1965.

Then go see a solicitor.

coylemj · 03-02-2016 11:36pm

stringy wrote: »

Check out s.117 of the Succession Act 1965.

Then go see a solicitor.

Is that really appropriate advice?

In the context of what the OP said ....

oscarb1974 wrote: »

... he left his house to my sister (also the executor) which I have no problem with as she lived with him and cared for him throughout his life.

haveringchick · 04-02-2016 6:57am

coylemj wrote: »

Is that really appropriate advice?

In the context of what the OP said ....

It's Irish people and wills and inheritance summed up in one sentence
"My sister lived with and cared for my dad until he died and I'll pretend I've no problem with her getting the house, but if I thought for one second I could get my money through legal action I'd have her out on the street in double quick time"
It's just how we are.

stringy · 04-02-2016 9:42am

coylemj wrote: »

Is that really appropriate advice?

In the context of what the OP said ....

First, legal advice cannot be given on this forum. But, if you really want...

If OP wishes to pursue a claim in place of a lapsed gift/lost inheritance, he is claiming against the estate. As long as the estate in not administered, the house forms part of the estate and does not legally vest in his sister, i.e. she doesn't own it.

If he wants a share of the house, he essentially wants a share of the estate. Usually a house forms the majority of an estate.

Therefore the most applicable avenue for a disappointed child to make a claim against the estate of their parent (because they got nothing, or not enough in their view), is to make a claim pursuant to s.117 of the 1965 Act.

There's a plethora of case law on this topic. I won't go into the merits of some claims that are made, but suffice to say, making a claim more often than not, results in something being paid to the disgruntled/disappointed child (usually out of court).

Whether he wants to the rock the boat vis a vis family relations, is a decision he will have to make. These things inevitably end in family turmoil.

In any event, the OP wanted to know what options he has, this is one, and in my opinion the only one.

4ensic15 · 04-02-2016 11:38pm

A will is ambulatory. It only takes effect on death. The testator can do what he likes with his property from the making of the will up to death. The potential beneficiary has no right to it at all. If it is not there on death that is the end of it as far as that gift is concerned.
It is open to a child of a deceased testator to claim under S. 117 that he or she has not been properly provided for in the will of a parent. If successful the court would effectively rewrite the will to make provision. There is no guarantee that this would produce any benefit for the claimant. Many such applications are refused. The court must take into account what a just and prudent parent would do, their positions in life, the number of them and any benefits conferred on them during the testators life and the amounts available. A child who was given a good education and well set up in life can hardly complain if there is only enough left for a house for an unemployed sibling who left school early to work in the family business, that they should have been given a share of the estate.

Will and lapsed gift (Money)

Comments