Challenging a Will

willow2670

Probate was granted on my deceased husband's Will about 18 months ago & he left everything to me. He has a son & daughter from a previous marriage and the daughter is contesting the Will. Both son and daughter are in their 50's and live in the UK. My husband provided for them both up until they turned 50.

Our solicitors will be going for settlement talks soon. What would she be entitled to? Has anyone been in the same position?

Thanks you in advance.

jd

50s?

My own take is that the 50 year olds should be told it is time to grow up. What did your solicitor say?

One thing, how long did you know him before you got married, and how long were you married to him for?

coylemj

On what grounds are they contesting the will? Your husband's responsibility to provide for them ended a long time ago.

UrbanFox

Have a look at S.117 of the Succession Act 1965. Link Succession Act, 1965, Section 117 (irishstatutebook.ie)

In particular, look at this ; 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.

We know nothing of the background circumstances of the contesting child so any reasoned view on that issue is impossible to form. That said, if this is a legally specious threat to the estate based on some ill-informed sense of entitlement they need to be told to give it a rest.

Also, they will be contesting within the jurisdiction of the Irish High Court. Therefore, they might need to be educated on the concept of security for costs. Being a plaintiff from outside the jurisdiction does not mean that an order for security for costs will issue for the asking. However, if the case is flimsy such an application might be worth it.

Link Superior Courts Rules | The Courts Service of Ireland

Jim_Hodge

If he provided for them up to the ridiculous age of 50 they have no claim. Don't let your solicitor settle that easily.

willow2670

Thank you for your feedbacks. The grounds I believe the daughter and her solicitor are depending on is that it was my husbands 'moral duty' to provide for them, Succession Act 1965. I had been with my husband for 40 years, married for 16 years. His Will was made over 10 years ago. During our time together, we ran several successful businesses in the UK. We came to Ireland over 25 years & have several properties. Some in his name & some in mine. The son (57) lives alone in one of my husbands apartment in London, of course, rent free. The daughter (59) is married to her second husband and has a grown up family. She is self employed.

Jim_Hodge

https://www.boards.ie/discussion/comment/120884870#Comment_120884870

"Moral Duty" does not encompass providing for them into their maturity, let alone their 50s. If he provided, even the basics, for them in their minority then his moral duty is fulfilled, regardless of his means.

coylemj

https://www.boards.ie/discussion/comment/120884870#Comment_120884870

You have now inherited the apartment occupied by your stepson. Did it not occur to your late husband that letting his middle-aged son live rent-free in an apartment was walking him into a poverty trap? He is now of an age where he can't raise a mortgage and probably doesn't have sufficient income to rent an apartment from the rental market.

The son and daughter may not have a case under S.117 (see post #4 above) but the son has been well and truly dropped into a bad situation, thanks to your late husband's benevolence in giving him free accommodation for the majority of his (the son's) working life. And then turfing him onto the street in his will.

There is no blame on your part but I can see why they have engaged lawyers, their aim is probably to get you to waive your inheritance in respect of the apartment. But the only way he can get the apartment outright is if you gift it to him. Which will saddle him with a big tax bill. It's inconceivable that the daughter has any legitimate claim on the estate.

Dav010

https://www.boards.ie/discussion/comment/120885190#Comment_120885190

That post almost reads like you are attaching blame for the son living rent free for many years, then having to find some place where he actually has to pay rent.

Surely not?

Jim_Hodge

https://www.boards.ie/discussion/comment/120885190#Comment_120885190

Attach a value to the son living rent free all these years. He has more than adequately been cared for. Poor thing will have to fork out for his own rent from here on. How do you know what the son can or can't afford after years of not having to pay rent? You've not the foggiest idea what his financial position is. And even then it doesn't give him a valid cause to challenge this will.

coylemj

How do you know what the son can or can't afford after years of not having to pay rent? You've not the foggiest idea what his financial position is?

I think it’s reasonable to assume that the OP’s stepson is not a CEO on a big fat salary.

Because, at the age of 57 and having been provided free accommodation (possibly for all of his adult life) by his father, he is now attempting a shakedown of his stepmother. On the entirely fictitious basis that he was not adequately provided for.

Peregrinus

We know next to nothing about the facts and circumstances on which the deceased's husbands children will rely to argue that the husband failed in his moral duty to provide for them. In post #6, the OP tells us a good deal more about her and her husband's affairs than she does about her stepchildren's situation. That's understandable; she knows more about her and her husband's affairs. But in terms of the claim that the stepchildren are bringing, that's not very relevant; the relevant information is what their situation is, what the husband did for them, and what the husband could have done for them.

I'm not saying that the stepchildren have a strong case; I see nothing to suggest that they do. But there might be facts that we don't know about that would be relevant to their case — e.g. if the reason the husband housed the son into his 50s is because the son suffers from some challenge or incapacity that impairs his ability to provide for himself.

Mind you, if that were the case you would expect the husband to have made some further provision for the son in his will and, obviously, he didn't. On the other hand if the case were utterly hopeless you would expect the son and the daughter not to waste their money bringing it. So, basicall, all we have is a big pool of ignorance about why this case is being brought and what facts the stepchildren are going to rely on.

OP, if you want people to express opinions about whether the stepchildren's case has any legs at all, what you need to do is to tell us everything that will help or support their case. Imagine you are trying to make a case on their behalf; what facts would you point to? Your husband supported them well into their 50s; why did he do that? Did he say or do anything which might lead them to expect that support to continue? Is there a reason why either of them would have difficulty providing for themselves? Has either of them suffered misfortune — educational deficit, an expensive divorce? Are there any grandchildren in the case? Everything that might give them (or that they might think might give them) any kind of moral claim on their father that isn't already obvious to us — you need to point to it all.

Mellor

https://www.boards.ie/discussion/comment/120885190#Comment_120885190

No aspect of the will results in the con being 'turfed onto the street". That seems to be some narrative you have added.

https://www.boards.ie/discussion/comment/120886495#Comment_120886495

Does he need to be a CEO on a fat salary to survive without a free ride? Everyone else seems to manage without mush hassle. You claim he is attempting a shakedown, but it's actually the daughter who has contested the will. Maybe they have a scheme in alliance, but we don't know that.

I don't think providing rent free accommodation for years is the best way to help your kids be financially independent. But I would be very surprised, if that action somehow produced an adult in their 50s who was worse off financially. Claiming he hasn't got money is also odd, if anything he was better able to set aside income for the future, make investments etc. He might not have of course, by why assume one over the other.

lawrencesummers

https://www.boards.ie/discussion/2058305999/challenging-a-will

Did you and your husband have any children together?

Is the daughter coming at this from the point of view that if she gets nothing now then she wont get anything in the future as you have no obligation towards her?

Could she/they be settled with an offer of the apartment that has never yielded anything for you anyway split between them, and they can figure out what happens, or else the case will be fully contested and if they lose he is evicted? The daughter would have an option of half a London apartment now or else her brother living in her spare room.

The tax implications of this are also a factor. If you have any intention of leaving them something in your Will then how would that play out in revenues eyes, are they inheriting from a parent with higher allowances or from another person with far lower allowances.

IF you are prepared to give them something in your will then it might be more tax efficient to give it from their fathers estate now but you would beed advice on that.

Peregrinus

Bit late to say so now, but this is the reason why, where you have blended families, it's generally a good idea to have open discussion about estate planning involving everyone who might have an interest or an expectation.

An issue that often arises where somebody who already has a family but then marries a second time is, how does this affect the inheritance expectations of the first family? The more property/wealth there is in the family, the bigger this issue looms. It's not uncommon in this situation for someone to let it be known, e.g, that they will leave half their estate to the children of their first marriage, and the other half to the second spouse and/or any children of the second marriage. (Or you can come up with variations on this, taking account of different family sizes, or of any property which the person may have inherited from their first spouse, etc, etc).

The point is, the sooner and more clearly you set everybody's expectations, and the more you do so in a way that indicates that you have considered everyone's situation, the more likely it is that everyone will accept what you have done, the less likely it is that they will challenge it, and the less likely it is that any challenge will succeed,

Claw Hammer

From what I have read it is only the daughter who is claiming, not the son. It is the daughters circumstances as at the date of death as well as any benefits she previously received which will be analysed. It is impossible to say, based onj the information given, what might happen in court.

willow2670

Thanks everyone for your thoughts and suggestions. Appreciate everyone’s time taken to answer my questions.

Out of interest - there was no mention of anyone 'turfing' the son out on the street.

spaceHopper

Are you sure settlement talk are a good idea, that implies you are prepared to offer something as a settlement. What does your solicitor say.

Realistically you might be better off settling and offering them something as to defend the case would cost a fair amount of money, epically if they bring a case in the UK and here. But that is a conversation you should have with your legal team, My approach would be to try to figure out what they want and what is their minimum they would take. If you are OK with that then offer that but make it time bounded, we need an answer in 30 day. Don't say it but leave them wondering what happens after 30 days. After than they will have go to court themselves. In the UK if they get less than your offer they could be on the hook for the legal costs from then on. If they get more you could be on the hook for them.

Your husband was probably badly advised, he should have left them a nominal amount as it would how he thought of them in the will.

coylemj

Are you sure settlement talk are a good idea, that implies you are prepared to offer something as a settlement. What does your solicitor say.

Realistically you might be better off settling and offering them something ....

Make your mind up!

Your husband was probably badly advised, he should have left them a nominal amount as it would how he thought of them in the will.

That would only be a possible defence to the claim that the father completely forgot about his children in the will. Even then, it would not in and of itself give them rights. You are not under any implied obligation to leave 1 euro to each of your children to prove you knew they still existed. Though I have seen a (US) will where the testator explicitly bequeathed nothing to each of his (named) children. This was obviousy done on the advice of the drafting lawyer, to thwart a potential claim that the testator forgot about them.

But in this case, the fact that his son was living rent-freee in an apartment owned by the father would suggest that the OP's husband was well aware of their existence.