Estate Planning Case Studies

There have been two landmark High Court judgments outlined below in our Estate Planning Case Studies which have had implications for how wills can be contested in Ireland.

Whilst one of the major tasks an executor of a will has to undertake after someone’s death is regularising the tax position of the deceased, probate can get complicated. Most executors will engage the services of a solicitor to assist them with the tax implications and with the other tasks that arise in administering an estate. In cases where people* want to challenge the fairness or legitimacy of the will, choosing a separate law firm who are experienced in probate matters is very important.

*Most in this category fall into the relationship of spouse, cohabitee or life partner, or child of the deceased.

There are remedies available at law, such as:

• A spouse is entitled under the Succession Act 1965 to a Legal Right Share in the Estate of the Deceased or to opt for the gift under the will.
• While a cohabitee (a partner with the qualifying time period per the legislation met) as a right of recourse to the courts for relief rather than a specific share.
• A child can have recourse to the estate by virtue of a Section 117 action.

Estate Planning Case Study 1: ‘GM’* – High Court [1970]

In this landmark Section 117 case, the only child of the deceased was 32 when the case was heard. He was a merchant seaman. His late father had been a doctor and had paid for all the plaintiff’s education. The father under his will left his estate to his widow, and left nothing in his will to his son. His son brought a claim under Section 117.

*Note that names in such cases are anonymised because these cases are heard not in heard in open Court but in private, also known as in camera.

The High Court decided that the following five considerations needed to be taken into account in s.117 cases:

• any amount left in the will to the widow (the bereaved spouse) (or else the value of the minimum statutory legal right share of the surviving spouse under the 1965 Act);
• the number of children, their ages and their position in life when the parent who made the will dies;
• the parent’s financial means;
• the age, financial position and prospects in life of the person making the claim under Section 117;
• whether the parent has already made proper provision for the child; and
• the facts at the date of death, not when the will was made.

In the GM case the Court held proper provision had not been made by the father for his son, the plaintiff. The Court awarded him half of the father’s estate, after taking account of his mother’s mandatory legal right share under the Succession Act 1965. You should note that in relation to Section 117 the law specifies that an application must be brought within six months of taking out full probate or administration of the estate: this is usually between nine to fifteen months after death.

Estate Planning Case Study 2: ‘SF’ – High Court [2015]

The case of SF involved a situation directly related to recession that emerged after 2008 and the economic crash. The deceased’s Estate was worth over €14 million, and the parent’s will had divided it equally between six children. One of the children, who brought the case under Section 117, had worked in the family business instead of pursuing his own independent career. When his father was alive, he had sold to the plaintiff some development land for €1.2 million: this was financed by a bank loan taken out by the son, which had been guaranteed by the father. Because of the economic crash, the development land was worth just €160,000 in 2015, but the son still owed €1.6 million on the bank loan. This meant that the plaintiff was in a much worse financial position than his father’s other children because much of his share of the estate would be needed to pay off the bank loan. In this case the High Court decided that the father had failed to make proper provision for his son because;

• he had not referred in his will to the loan guarantee he had given the plaintiff, and
• the guarantee was now worthless the plaintiff was in a considerably worse position than his siblings because much of his share of the estate would be required to pay off the balance remaining on the bank loan.

The Court therefore decided that the plaintiff’s bank loan of €1.6 million should be paid out of the €14 million estate, that he should be given an additional sum of €500,000 and that he and the other five children should then share equally the remainder in the estate.

The above case studys have been excerpted from the Law Reform Commission 2017 report.

Time Limits & Avenues of Appeal

Strict time limits apply also to the other remedies and as such if you believe you or a dependent (such as a non-marital child who is still under 18 and a minor) require assistance you should seek legal advice quickly after learning of the death. In 2017 the Law Reform Commission reviewed this area of law and published a Report on Succession Law under which a child (including an adult child) can claim against a Will. The Report makes several recommendations including that section 117 relief should be extended to the law of intestacy. Currently the position under intestacy (where there is no Will) does not have the benefit of s.117 relief and the legal position varies considerably. Other avenues of recourse include promissory estoppel (i.e. the law of fairness or equity will not allow a wrong to be done if you acted in reliance of a promise made to you), as well as various other Will challenges either by way of undue influence or in terms of the technical composition of a Will.

Getting Legal Advice

At Carmody Moran Solicitors we appreciate that this can be a difficult approach to make when you are already dealing with so many other feelings and stresses. However prompt, accurate, and timely advice is very important. The approach by an expert solicitor can be made in a conciliatory manner and alternative dispute resolutions explored so as to avoid the upset and additional stress that can go with the issue of court proceedings. We have acted for clients in a variety of situations including;

• parents on behalf of an infant child who were disinherited by another parent (who was in a marital relationship with another and had other adult children)
• children of blended families
• adult children
• estranged children from the deceased
• partners who were not married

We understand it can be difficult to explore such issues with the speed the law demands. It is important however that your interests are protected if you have a valid claim against an estate and that you take prompt action to protect your position or that of another (such as an infant child or other dependant child) if required. Our experts are skilled in not only the legal knowledge to successfully bring and/or defend such actions but to furnish you with initial advice regarding the right course of action. At an early stage you can make informed decisions and take the right steps so as to protect your position and to receive that advice from an expert in a sensitive and direct manner. Probate law is complex and more than one avenue of resource may need investigation. Carmody Moran Solicitors are in a position to guide and offer you expert experienced advice which is essential so as not to fall foul of the intricacies of this complex area of law.