Read these FAQs below answered by our Probate Solicitors

Carmody Moran Solicitors LLP are experts in working with individuals and families with varying levels of capacity and legal life planning for individuals in a variety of circumstances, sometimes in sensitive or complex situations.  Whether you are creating your own Will or seeking to challenge a Will, we can offer you expert and tailored advice. Our probate solicitors have some questions below, if you need any more advice feel free to contact us on 01-8272888 or by using the quick enquiry link here.

 

1. Legal Jargon

Let’s get some of the legal jargon probate solicitors use out of the way first.  In law, language is important and it must be precise and so there are some terms used in this piece which may mean nothing to you or seem confusing.  We have used these words here as otherwise it may be unclear what we are talking about.  Likewise, if you do not know what some of the words mean in law, then it may be hard to follow:

  • Will: easy one to start with; the written instructions of what to do on the death of a person (called the Testator).
  • Testator: the person who makes the will.
  • Estate: Everything that was owned by the Testator.  This is what is distributed by the Will.
  • Executor: the person named in the will who deals with the will after the Testator’s death and ensures that all debts are paid and that the beneficiaries get what they are left in the will.
  • Beneficiary: someone who has been left something in a will.
  • Gift: what someone is left in a Will.  Can also be referred to as a Bequest or a Legacy.
  • Succession Act: the main piece of law that deals with Wills.
  • Children: can be any age (the oldest we dealt with was in their 70’s) and include adopted children and in certain cases beyond this.
  • A Trust: A special way of leaving a gift to someone in a will so that the beneficiary gets the benefit of but not the ownership of a gift.
  • Trustee: someone who looks after the Trust. They are named in the Will.
  • Guardian: A person named in a Will to look after a child or an incapacitated person.
  • Testate A person who dies having made a valid Will is deemed to have died testate.
  • Intestate A person who dies having not made a Will, or where the will is invalid is deemed to have died intestate.
  • The Statute The length of time a person has to do certain things or make certain challenges against a will or invoke certain rights.  The expression Statute Barred, means that you are too late to do something.  In Succession Law, these time limits can be very short, as little as 6 months.  If you need advice you should not delay as there are no extensions of time allowed.
  • Caveat: A document which is lodged in the Probate Office to stop an estate from being administered and, therefore, distributed.
  • Spouse: a husband or wife or civil partner (excludes a co-habitant).
  • Probate: the formal process for the distribution of assets (the estate) by an Executor under the terms of a will.
  • Probate Office: The official office which deals with Probate applications.

2. How to write a valid Will?

There are certain steps you must take in order to ensure your will is valid and not open to challenge. Firstly, you need to consider all of your assets and if you need to make “proper provision” for anyone. A valid will must be in writing and should include information such as your full name and address, details of any executor(s) you wish to appoint and revoke any earlier will you may have made. A testator is assumed to have capacity unless the contrary is proven.

At Carmody Moran Solicitors LLP will we send you a complete information pack and an instruction sheet to help you prepare your Will, we as probate solicitors will then work through your instructions with you and discuss you wishes and offer our expert guidance and advice to help you prepare your Will and guard against any future challenge to your wishes.

Capacity

One of the biggest reasons for contesting a will is that the person making the will (testator) did not have any, or any adequate capacity to make that will. If you are under the age of 18, you will not have the legal capacity to make a will unless you are married. An individual may not have capacity as a result of certain illnesses, age related memory problems or disability.

At Carmody Moran Solicitors LLP our probate solicitors have experience of dealing with Wills challenged on the grounds of insufficient capacity to make the Will and acting on behalf of unhappy beneficiaries who believe that they were not adequately provided for, for example in the Will of their parent.  We bring this expertise to the preparation of Wills on behalf of our clients.  The best protection against a claim incapacity is putting an affidavit of medical capacity with the Will at the time of making it so there is a contemporaneous record of capacity.  Indeed, protecting your intentions and having a record of your Will Instructions is one of many reasons it is so important to seek the assistance of an experienced Wills and Probate Solicitor when making your Will and not just to go for the cheap fix!

Just because a person is getting older, it does not mean that they will not have the requisite capacity to make a will. If in doubt, a medical report can be obtained to prove a person has capacity. It is important to seek full and adequate legal advice to determine if and when such a report is required.  While a stationary form home-made Will may bring you comfort in writing up your wishes, there is no guarantee that the Will is enforceable nor is there the expertise to stand over your Will in the future, in comparison to having an experienced Wills and Probate Solicitor prepare your Will.

Proper provision for children

The first thing to note here is that “children” means just that: the children of the Testator

A person making their Will, known as the testator, has a duty to their children, even on death, to provide for them into the future. This duty may have been satisfied during the testator’s lifetime, but this will depend on the individual circumstances of each family and the testator’s wealth.

This provision is particularly important if the testator has a vulnerable dependent who requires extra care going forward. If you feel that a family member may have additional needs after your death, getting adequate legal advice can prevent difficulties down the road.

At Carmody Moran Probate Solicitors we have acted in numerous claims against Estates generally against a parent for not making proper provision.  This can be for a young child for example whose parent dies suddenly and makes no provision for them, or a section 117 of the Succession Act, claim can equally be taken by an adult child.

There are many considerations when making your Will and Carmody Moran Solicitors expert Wills and Probate Solicitors are on hand to guide you as you make these important life and estate planning decisions when making your Will.

The case of ABC Deceased

Witnesses

When a testator signs their own will, they will require 2 witnesses to sign the will in the presence of the testator. It is important that both witnesses sign together on the same day. Be mindful that the witnesses to a will should not benefit from that will in any way. Any gift left to a witness will not be valid.

These are some of the special formalities around making a Will.  You can appreciate from reading all that is involved in making your Will, why this is not a cheap and easy task if your Will is to be valid and your wishes safeguarded.  It takes care, expertise, and specialist knowledge to make a valid Will and one that is safeguarded from future attack, and our specialist Probate Solicitors are experts in their area to help guide you as you make your Will.

 

3. I am planning on making a Will but I would like to do it myself – what do I need to think about?

All of your property (personal belongings, real estate, bank accounts, cash, etc) is considered to form your “estate” when you die. This may include your own personal property, property you own with someone else (joint property) or property which you may own in a small percentage (e.g., shares) You should consider what you wish to pass on and to whom. Be as specific as possible, i.e., specify bank account numbers and not just the bank name.

You can leave a gift to your spouse, children, grandchildren, friend, neighbour. It is entirely your decision. You may also wish to leave a legacy to a charity or make a one-off donation.

You have the option of forming a trust for the benefit of your family, in order to secure their financial wellbeing going into the future.

Be mindful that there are different legal and financial obligations depending on whether you are married or not. There is no inheritance tax between spouses. However, if you are not married and wish to leave a gift to a partner, child or friend, it can be very expensive for them.

Be mindful

Some people will create their own will in order to save time and legal costs. Even if the will has been drafted in accordance with the required principals, it is still open to challenge before the Court. If a testator has not taken proper legal advice, it can easily be assumed that the will is not valid. This is not necessarily true, but it can be quite costly if a challenge is brought before the Courts.

Mr Justice Senan Allen of the High Court stated In the Matter of the Estate of Patrick John Mannion [2021] IEHC 117, that when a will was prepared without the benefit of legal advice, the thinking was that it would save paying a Solicitor to prepare it on his behalf. However, a challenge to the High Court was very costly indeed and was ultimately paid from the estate of the testator, he stated “If, in a roundabout way, Fr. Mannion’s object that Mr. Shields should administer his estate has been achieved, his object in avoiding lawyers’ fees has fairly spectacularly failed. The costs of this application must be borne by his estate.

A home-made or a generic stationary Will, might seem like a great saving.  It may save €300 to €500 in legal fees, depending on the complexities of the Will, however if challenged in the High Court the costs to the Estate ultimately could cost many, many, multiples of that sum, indeed a six figure sum is not out of the question for the cost of a High Court hearing allowing for numerous sets of legal costs between the Estate and the Will challenger, and beneficiaries.  Taking expert advice in your legal life planning from highly experienced Wills and Probate Solicitors could ultimately be the best value legal advice you spend when you consider the alternative ‘bleak house’ type scenario.

The case of Mannion above, is not the only recent case that demonstrates the value in having legal expertise and input into the making of your Will.

Ms Justice Úna Ní Raifeartaigh stated in the similar case of In the Matter of the Estate of Mary PhilomenaMaureen McEnroe [2021] IECA 28 that “The appellant had no choice but to bring the application in order to get a grant and administer the estate, and the difficulty arose out of the actions of the deceased herself, not by reason of any conduct on the part of the appellant. Accordingly, we will grant the costs of the appeal and reverse the High Court decision and award the High Court costs to the appellant also, both to come from the estate in due course.”

Not getting proper legal advice ultimately cost the deceased estate a significant sum, which is clearly not what the testator intended. It is always beneficial to seek legal advice. The testator may have saved the small fee by not going to a solicitor, but ultimately cost her estate legal fees in excess of €250,000.

 

4. Can making a Will reduce inheritance tax (capital acquisitions tax)?

What is Inheritance tax?

Inheritance tax is a tax payable by a beneficiary of a will once their tax free  threshold is exceeded. Inheritance tax is a legal obligation. However,  there is no tax applicable to inheritance or gifts that pass from spouse to spouse.

Once the value of inheritance reaches the threshold, the beneficiary will be obliged to pay tax at a rate of 33% (current rate and subject to change). If you are in a long-term relationship, but not married, inheritance tax may still apply making it very expensive for a long-term partner to inherit from your estate.   It is important to undertake a degree of tax planning when making your Will and the advice of an expert Wills and Probate Solicitor when preparing your Will,  will help guide you as you weigh up these considerations.

In Geraldine Barry v Health Service Executive and Mercy University Hospital Limited [2015] IEHC 79, Mr Justice Barr heard how a woman was obliged to seek a loan from her Credit Union in the amount of €76,761 in respect of the inheritance tax that she was obliged to pay on receipt of her inheritance from her partner on his death. Although the deceased had lived with his partner for almost 27 years, they had never married, meaning she did not obtain the legal protections afforded to those that are married.

When making a will, you should consider all of your assets and who you want to benefit from those assets. It is also an option to leave your estate to just one individual, give everyone in your family a share or leave a gift to charity.   Making your Will, gives you an opportunity to plan for your wishes to be implemented after your death in a tax efficient manner so that those you intend to benefit, do benefit.  Particularly if you have a complex marital history or personal circumstances the benefits of making a Will for your loved ones cannot be overstated.  At Carmody Moran Solicitors our Probate Solicitors have dealt with many non-marital families as they administer the Estate of a loved one, this can bring with it certain complexities that could be simplified by the making of a Will.

When does it apply?

Inheritance tax will apply to most gifts or inheritance, to include cash gifts, real property, jewellery, shares and stock, cars etc. the list is endless. Of course, there are some exceptions which is why you should obtain full and adequate legal advice on inheriting property.

You may decide to leave something to a charity. This could be anything from property, money, paintings etc.

Any exceptions?

There are some exceptions to inheritance tax. As mentioned, if you are a beneficiary of your spouse, you will not be obliged to pay any inheritance tax. If you own joint property and wish for your share to be given to the other joint owner, they will not have to pay inheritance tax.

There are some other exceptions but will depend on the individual facts. Every estate will differ, so it is vital that you seek legal advice in order to consider your options.

How long do I have to pay?

This will depend on when the testator dies, if the will is considered valid, if there are any challenges to the will and how much the gift is worth. Each situation is different so make sure you get advice from a reputable source. You should note that penalties may apply if you do not file with revenue on time in relation to any inheritance that may be subject to tax.

 

5. Should I think about making a new Will to replace the one I wrote years ago?

Just because you have made a will in the past, does not mean you cannot make another one and amend the terms as you wish. You can change your will at any time, and as often as you like. Remember, a will is about your wishes and you are entitled to change your mind.

It is especially important to update your will if your circumstances have changed. A change in circumstances could be anything from the sale of property, if you get married, have a child, the death of a family member etc. If you update your will after a change in circumstances, it is less likely to be challenged before the Courts.

Good intentions can still lead to a challenge of a will. High Court Judge, Ms. Justice Nuala Butler, discussed this on the 26th of February 2021 when she stated that

“In normal course, where a testator makes a gift in his will of a specific item of property which no longer exists or which he no longer owns at the date of his death, the gift will fail and is said to be adeemed. To determine whether a gift has been adeemed, the court must construe the terms of the will to ascertain exactly what the testator intended to leave. In particular, a court must look to the extent to which the phrasing of the gift by the testator can be taken to have contemplated a change in the form of the property the subject of the gift. Obviously, a gift that is phrased generally will be far less likely to be held to have been adeemed than one which is phrased specifically.”

This case related to a gift of shares left in a will. The shares in question no longer existed as described in the will meaning the gift was invalid. The change in the name and type of gift specified at the time when the will was made, ultimately meant the provision in the will was invalid.

A testator needs to be mindful of any change, big or small, which may alter his or her will contrary to what was intended. If you are in doubt, seek legal advice. You may not need to change the terms of your will, but it is always better to be safe than sorry. A small error could end up costing your estate thousands in Court Costs.

 

6. Can I stop my grown-up adult children contesting my Will? I would like to leave everything to my new partner now that my wife has died. 

There are a number of reasons why a will could be contested. For example, if a will does not comply with Irish law, issues with the construction of the will or the terminology used, if a witness did not sign correctly or the spouse does not inherit a legal right share of one third.

Legal right share

A spouse is entitled to a “legal right share” even if this is not specified by a testator. Legal right share is a right of a spouse even when there is no will made. The percentage of this share will depend on the testator’s family circumstances (children or no children). If a testator has not made allowances in their will for their spouse, an application can be made before the Court to contest the terms of the will.

Children

If a will does not allow for certain provisions for your children, an application can be made pursuant to Section 117 of the Succession Act to the Court, seeking “proper provision”. The success of such an application will depend on the individual circumstances of the testator’s estate which is why it is important to take legal advice. If you include some but not all of your children in your will, it may give rise to a challenge. If you do not make extra provision for a child with particular needs, a challenge may be made before the Court.

If your spouse has died or you are no longer married and you wish to include your new partner in a will, you can of course do so. However, it is still open to challenge by your children on the basis that you failed to make “proper provision” for them. Be mindful that your new partner will not have the same legal protection that a spouse would have.

If you are simply separated or divorced from your spouse and wish to include your partner in your will, you will need to consider the terms of your separation agreement or divorce terms, if relevant, and review these with your Solicitor when making your will.   Family law can crossover with Probate law and early expert legal advice from an experienced Probate Solicitor, can greatly help.

What is proper provision for a child and Section 117 claim

Proper provision essentially means fairness. When a court considers a will, it will consider whether the terms are fair for all of the parties involved, given the specific circumstances of the estate and the beneficiaries involved.

It is open to any of your children to make an application on the basis that there was no proper provision made for them. Any child of a testator can make an application to Court in accordance with Section 117 (of the Succession Act 1965) seeking proper provision for them to be made under the will. The Court will then consider the number of children, their financial means and individual circumstances, their age and if the testator has already made provision for that child before their death. An application of this nature must be issued within six months of the date of the Grant of Probate.

The Case of Re ABC deceased; XC & Others v RT & Others (2003), the Court set out what a Judge must consider when looking at a claim being brought by a child when considering whether there was a failure of moral duty and assessing whether proper provision has been made for a child.  The exact text from the Judgment is:

  1. The social policy underlying section 117 is primarily directed to protecting those Children who are still of an age and situation in life where they might reasonably expect support from their parents, against the failure of parents who are unmindful of their duties in that area.
  2. What has to be determined is whether the testator at the time of his death, owed any moral obligation to the children, and if so, whether he has failed in that obligation.
  3. There is a high onus of proof placed on the applicant for relief under section 117, which requires the establishment of a positive failure in moral duty.
  4. Before a court can interfere, there must be clear circumstances and a positive failure in moral duty.
  5. The duty created by section 117 is not absolute.
  6. The relationship of parent and child does not itself and without regard to other circumstances, create a moral duty to leave anything by will to the child.
  7. Section 117 does not create an obligation to leave something to each child.
  8. The provision of an expensive education to a child may discharge the moral duty as may other gifts or settlements made during the lifetime of the testator.
  9. Financing a good education so as to give a child the best start in life possible and providing money, which, if properly managed, should afford a degree of financial security for the rest of one’s life, does amount to making proper provision.
  10. The duty under section 117 is not to make adequate provision but to provide proper provision in accordance with the testator’s means.
  11. A just parent may take into account not just his moral obligations to his children and to his wife, but all his moral obligations e.g., to aged and infirm parents.
  12. In dealing with section 117 applications, the position of an applicant child is not to be taken in isolation. The court’s duty is to consider the entirety of the testator’s affairs and to decide upon the application in the overall context. In other words, while the moral claim of a child may require a testator to make a particular provision for him, the moral claims of others may require such provision to be reduced or omitted altogether.
  13. Special circumstances giving rise to a moral duty may arise if a child is induced to believe that by, for example working on a farm he will ultimately become the owner of it, thereby causing him to shape his upbringing, training and life accordingly.
  14. Special needs would also include physical or mental disability.
  15. Another example of special circumstances might be a child who had a long illness or an exceptional talent which it would be morally wrong to foster.
  16. Although the court has very wide powers both as to when to make provision for an applicant child and as to the nature of such provision, such powers must not be construed as giving the court a power to make a new will for the testator.
  17. The test to be applied is not which of the alternative courses open to the testator the court itself would have adopted if confronted with the same situation but, rather, whether the decision of the testator to adopt for the course he did, of itself and without more, constituted a breach of moral duty to the plaintiff.
  18. The court must disregard the fact that parents must be presumed to know their children better that anyone else.”

Each case is judged on its own merits and the circumstances of all the children and the parents will be looked at by a Court.

 

 7. My mother is getting older and sometimes can be quite confused and forgetful, she would like to make a Will, if my elderly mother does make a Will, will her Will be valid?

In order to make a valid will, the testator will need to have capacity to do so. Capacity can mean the person must be of sound mind. Sound mind means that you are aware of your decisions and you can adequately consider what the consequences may be.

When making a will, it may be irrelevant that a person has or is suffering from a recognised medical condition, is suffering from memory loss or age-related difficulties, as long as they understand that they are making a will, what that means and how it will affect their family. The testator should also be aware of what they own, what family members they should consider and what specifically each person will benefit from.

At Carmody Moran Solicitors both partners, Niamh Moran and Anthony Carmody, are experienced mental health lawyers, highly experienced at assessing legal capacity and liaising with doctors and other professionals around medical capacity.

If there is a particular concern in relation to the mental capacity of a testator, there is an option to obtain a medical report from a treating doctor to say that the testator is of sound mind and has the capacity to make a will. This will depend on the individual circumstance of each person, so it is important to obtain proper legal advice in that regard.

Testamentary capacity

A “testator” is an individual who makes a will. The term “testamentary capacity” means that the person making a will has the required capacity and understanding to do so. The testator must be aware of the consequences of making a will, the extent of their own estate and what that includes, and who should or could benefit from the estate on their death.

In Scally V Rhatigan [2010] IEHC 475, the Court determined that the deceased, despite having motor neuron disease, severe physical disability and cognitive limitations, had testamentary capacity when he made his will. A number of medical experts gave evidence to the court due to questions of mental capacity being raised. The Judge in this case went on to support the golden rule principle that solicitors will generally apply when dealing with a mature client making a will, and stated that  “The substance of the golden rule is that when a solicitor is instructed to prepare a will for an aged Testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the Testator, and to make a contemporaneous record of his examination and findings”.

It should be noted that the burden of proving that the testator did not have the ‘testamentary capacity’ to make a will, will be placed on the individual making the accusation. It will be assumed that a testator did have the capacity at the time of making their will.

 

8. My sister says she is bringing my elderly father to make a Will. My father is increasingly confused and open to persuasion.  I am concerned my sister is bullying him to make his Will.

If an individual who has made a will, known as a testator, is not of sound mind and a doctor will not certify that they of sound mind, they may not have the legal capacity to make a will. However, if a testator is of sound mind and wishes to make a will, there is no legal basis to prevent this. There is a presumption that a person has capacity to make a will unless the contrary can be proven.

Unfortunately, this challenge is often made only after death, the best protection against such a claim, is the steps taken by you with your solicitor at the time of making your will.  At Carmody Moran Solicitors our Probate Solicitors have reviewed and taken many cases post the death of a testator and seen many wills challenged for this reason.

During someone’s lifetime, if you feel that a testator has been put under pressure or “undue influence” to make a will, there are mechanisms in place to ensure that this type of behaviour is limited. A solicitor will meet with the client on their own and speak about their intentions. A solicitor will take detailed notes of the meeting and will determine if the client is there of their own free will. If a client is being pressured, steps can be taken.

A solicitor will meet with the client alone and ensure them that what they say is completely confidential. However, any notes taken during these meetings can be used in court if an issue arises on the death of the client.

Undue influence is particularly prevalent in the elderly and will often be at the hands of a relative or friend who may benefit from a change in their will. It cannot be assumed that there is undue influence or pressure being placed on the testator simply because they are older and wish to make a will. The testator will need to give full and proper instructions to their solicitor, without the assistance of a third party. If it is found the there was a level of coercion or undue influence placed on the testator, the will in question will not be valid.

If a relationship arises out of dependency and particular vulnerability of one party, it may be presumed that there is a level of undue influence. If one party has an unfair advantage and subsequently benefits from this financially or otherwise, the Courts may consider this benefit to be as a direct result of the undue influence held over one of the parties. an example of such a vulnerability can be seen in a parent/child relationship, whereby the child is taking care of an elderly parent.

Generally, it will be up to the person gaining from the relationship, the stronger individual, to rebut this presumption of undue influence. It must be shown that the transaction or gift in a will has been given freely by the weaker party and that he/she understood the consequences of his/her own actions. The weaker party may have obtained independent legal advice or spoken to a financial advisor.

In Darby v. Shanley [2009] IEHC 459, Irvine J reiterated the importance of independent legal advice and held that if a solicitor is advising both parties in a transaction, they cannot be considered as independent in their advice. The Court in this case also discussed how important a solicitor’s role is when dealing with an elderly client. There is an obligation on a solicitor to ensure that their client is under no outside influence, that the decisions they are making are theirs alone and to meet their client alone to ensure they have an opportunity to speak up.

If it transpires, after your father’s death, that he made a will as a result of undue influence then it is important that you have full and proper legal advice. Good legal advice is key in situations of this nature, given the complexity and severity of the consequences on the parties involved.

Similarly in Carroll v Carroll [1999] 4 IR 218, the Supreme Court when discussing undue influence held that “Once a relationship giving rise to a presumption of undue influence is established, and it is shown that a “substantial benefit” has been obtained, the onus lies on the done to establish that the gift or transaction resulted from the free exercise of the donors will.”

This case related to an allegation that a son had taken advantage of his father and exercised undue influence over his father in order for him to make a will in his favour. The court determined that he has in fact taken advantage of his position or had been assiduous not to do so. It did not have to be the case that his son had taken advantage of his position expressly. Rather it was a case where in the circumstances “assiduous care should have been taken not to take advantage of the position” of his father. The will in this case was found to be invalid.

 

9. My 10-year-old child will need ongoing care for the rest of her life, what provision can I make for her when making my Will?

 If you have a child that has particular needs that will remain going into the future, a ‘Trust’ may be an option to consider. A trust is a legal mechanism whereby a third party, known as the trustee, is assigned to take control of and be responsible for assets, which will benefit another individual or individuals. The person or persons who benefit will be known as the beneficiaries.

A trust does not need to be included in a will and can be formed as a stand-alone document if you wish and can operate during your own lifetime. Assets held in the trust can be released at a specified time, e.g., on the beneficiary turning 18, used for a specific purpose e.g., third level education or for care of a child for their lifetime.

Trusts are particularly beneficial if you have a child or spouse with special needs or a disability that may require extra care or financial support.

The terms of a trust will be very specific to you and your circumstances. You will need to specify who the trustee will be, when the trust will come to an end or if the trust should remain for a someone’s lifetime.

It is important to get the right advice in order to ensure that the trust is created in accordance with the law and will in fact provide for the beneficiary as intended. Get in touch with our Probate Solicitors here for advice.

Section 84 Capital Acquisitions Tax Consolidation Act 2003

The Capital Acquisitions Tax Consolidation Act 2003 sets out a legal obligation to pay Capital Acquisitions Tax when inheriting gifts or property from a family member or friend. This tax is determined by self-assessment. The date of inheritance will generally be the date of death. There are exceptions to the Act and not all property will be subject to tax e.g., if you own property as a joint tenant with the testator.

Section 84 of the Act states any gift or inheritance taken for the purpose of providing medical care and related expenses for a person who is “incapacitated by reason of physical or mental infirmity” does not qualify for the usual Capital Acquisitions Tax. The gift must be used solely for the use of medical expenses, if the gift is used for any other purpose, the exemption will not apply meaning you will be liable to pay tax.

The Revenue Commissioners may require evidence as to the testator’s intention at the time of making the will, and that the gift was solely for the purpose of providing medical care to a personal considered as permanently incapacitated.

In H v H [2008] IEHC 163, Mr. Justice Sheehan considered a Section 117 claim by a child with specific care needs and stated that “the matter that I attach most significance to on the defence side is the illness the defendant’s daughter suffers from and her ongoing extensive requirements relating to permanent care. In considering the plaintiff’s application from the point of view of a prudent and just parent, and bearing in mind the matters already referred to, I am conscious that the plaintiff has grown up largely without the support and presence of her father. This fact weighs more heavily with me than the fact that the plaintiff has grown up in a modest environment. In the circumstances of this case, I hold that proper provision for the plaintiff requires that she be enabled to complete her second and third level education in relative comfort and be enabled to purchase a two-bedroom apartment not far from where she presently lives with her mother”.

In L. v. L. [1978] 1 I.R. 288,  the court found that “a parent, in acting prudently and justly, must weigh up carefully all his moral obligations. In doing so, he may be required to make greater provision for one of his children than for others. For example, one child may have a long illness for which provision must be made; or one child may have an exceptional talent which it would be morally wrong not to foster.”

Carmody Moran’s expert probate solicitors have worked with families with vulnerable individuals to protect in terms of legal life planning.  These can range from protecting someone who is vulnerable to persuasion, has mental health issues, or physical health issues, that mean the individual will require care and protection into the future.

10. I am remarried and thinking of leaving the shares in our family business, a company, to my new husband. My children do not like my new husband, can I force them to accept him as a shareholder in the family business?

Articles of Association and Shareholders’ agreements are very important documents when dealing with a company. Articles of Association will specify the companies purpose, day to day operations, the management of finances, and how and when a director is to be appointed. This is a legal document required by law.

 A shareholders agreement is a contract made between the shareholders and will set up specific details on management and how to manage disputes between the shareholders. Most shareholder agreements will set out how shares are to be sold or passed on in the event of a death. Generally, shareholder agreements will impose certain restrictions when transferring shares and will require current shareholders the first opportunity to purchase shares.

 A shareholder’s agreement can include provisions governing the transfer of shares to either impose restrictions or sets out the type of transfers that would be allowed.

The reasoning behind such provisions is to prevent outsiders from purchasing shares without the other shareholders being aware.  Most agreements will set out an obligation that shareholders will not sell their shares to third parties without giving the option to the existing shareholders first.

Not all but some agreements will also provide for situations arising out of death or divorce. These provisions are specific to the individual agreement but may prevent shares being transferred to a shareholder’s spouse or other family member and may specify that shares in these situations must be purchased by an existing shareholder. This is why it is very important to view any existing shareholder agreement and/or articles of association and seek proper legal advice.

It may not be possible to force a company to accept your spouse as a shareholder. Share transfers are governed by the company’s articles of association and shareholders’ agreement and may be blocked, despite a gift being made in your will that says otherwise.

In the case of family run businesses, there may be several restrictions contained within the shareholders agreement to ensure that the business will remain within the family. If there is conflict between shareholders, it may cause major disruption to the every-day decision making of the business. Some shareholder disputes end up before the Court and could result in significant legal costs in order to resolve matters. Even if the shareholders agreement allows the transfer of shares to a third party, conflict and disagreements may arise. If your spouse and children do not get along, it may result in court proceedings being taken by one of the parties.

In Annemarie O’Connor v Atlantis Seafood Wexford Limited and John Kenny and Mark O’Connor [2017] IEHC 589, the Plaintiff was obliged to take proceedings against her brother-in-law and son, as they were behaving in a manner oppressive to her as a shareholder, or member, of the company. Applications of these nature coming before a Judge of the High Court, meaning the legal costs can run in to tens of thousands.

Company law can be a very complex area of law. It is always advised to speak to probate solicitors about your company before making a will.

 

11. My elderly aunt is getting confused and forgetful, I am worried that she is financially vulnerable and vulnerable to elder abuse. What provision can she or I make to protect my elderly relative?

If you feel that an elderly relative may be particularly vulnerable given the recent changes in their behaviour, there are a number of options open to you. There is a big difference in getting older and suffering the usual age-related memory loss and being diagnosed with a recognised medical condition.  Even with getting older, most people are still in a position to care for themselves and look after their own affairs. However, if there are particular difficulties, there are options available.

Next of kin

A next of kin is someone who has been nominated in a medical setting to be contacted in the event of a medical event or illness of a friend or family member. The next of kin does not hold any legal power to make decisions, legal or otherwise, and will not benefit from the persons will. A next of kin will be informed of any significant decline in the persons health and care and is usually a close family member. If you do not nominate your next of kin, generally it will be your spouse or children.

Power of attorney

A person may establish a “power of attorney” in order to look after their affairs specific to a certain event or a transaction or duration. The power of attorney may specify the purpose of such appointment or may be a general power to deal with a specific purpose. The power of attorney can make decision on your behalf, even if you are still alive, in relation to your property, finances, assets, pay bills, etc. however, a power of attorney is not valid if you become mentally incapacitated.

Enduring power of attorney

An enduring power of attorney will only take effect when the individual becomes mentally incapacitated. The enduring power of attorney will have control of your affairs and legal decisions. They may also make decisions in relation to your care and day to day wellbeing e.g., housing, where you will live etc.

There are certain persons who cannot legally be appointed a power of attorney. Those that can be appointed will need to provide certain documentation. Make sure you speak to your solicitor to ensure this is the right option for you and if you do decide that this is the right fit, that the correct procedure if followed to ensure that it complies with the law.

Ward of court

If a person becomes unable to look after their own day to day care and legal affairs, an application can be made to the Courts to seek an Order determining the individual a ward of court. The Court will determine if the individual can in fact look after their own affairs. This means that the Court will appoint a committee to deal with any decisions or assets on behalf of the ward of Court. An order of this nature is generally made when the ward of court suffers some type of mental incapacity or diagnosis.

The court will be kept informed of any decisions the committee make on behalf of the ward of court in relation to their affairs. The committee will deal with assets, property, debts and liabilities, medical care, travel etc.

If you feel that a family member or friend is no longer capable of looking after their own affairs, you should discuss the matter with your solicitor to make an informed decision on what the most appropriate step may be.  Both Anthony Carmody and Niamh Moran have experience in the area of wardship, and making Enduring Powers of Attorney, and meeting with people and assessing legal capacity.  The two partners at Carmody Moran Solicitors have significant experience around the area of elder law and mental health law and capacity, they are skilled with meeting and guiding people in a sensitive and expert manner around the variety of issues that can arise in this difficult time in a family’s life.

 

 12. Why should I make a Will, if my wife and children will inherit everything anyway under intestacy rules?

If you do not have a will when you die, the rules of intestacy will determine the division of your Estate.  If you are married, your spouse and children will inherit your estate. If the property is not jointly owned, then your spouse will only receive a legal right share of one third of your estate. The remainder will be split between your children. This can get very complicated, particularly when dealing with the family home, a business, or farmland etc. If there are no children, the entirety of your estate will automatically go to your spouse.

If you want your spouse to inherit the family home, you will need to specify this in a will. If you want to leave a gift to a family member or friend, this will also need to be specified in your will. Your estate will be divided by the rules of intestacy unless stated otherwise.

The Succession Act 1965 sets out the order in which your family will inherit from your estate. This may not reflect how you wish to distribute your estate. You may wish to leave gifts to friends or neighbours, leave a gift to charity, set up a trust to look after a vulnerable spouse or child etc.

Essentially your children will have a bigger share of your estate, than your spouse. This may not suit every family dynamic, so it is something to consider. You may tell your family that you wish to leave a friend something specific like your stamp collection or golf clubs, but unless you specifically state this in your will this is not legally binding under the rules of intestacy.

When you speak to a solicitor and receive legal advice, it can focus your mind on specific assets which you wish to gift to others outside your family.

It should be noted that if you and your spouse separate before your death, but you never divorce, the law still considers you married. This means that your spouse will still be entitled to the legal right share of one third, even if your will specifies a lessor share. This may give rise to a legal challenge if your spouse needs additional care or financial support after your death.

In the Matter of The Estate of Peter Clohessy [2017] IEHC 797, Mr Justice Binchy decided that the 95-year spouse of the deceased was entitled to her legal right share of one third, despite the testator gifting €1000 to his spouse. The legal right share was her legal entitlement despite the will expressly stating otherwise.

 

 13. I am separated, but still married to the mother of my children. I would like to leave everything to my new younger partner, but maybe it is easier if I make no Will?

If you are still married, legally your property will go to your wife and children. The law does not distinguish between a married couple who live together and a couple who do not. The only exception to this is if you have a formal separation agreement in place. This means that even if you have separated and have a new partner and children, if you die without a will, your estate may be given to your wife and any children from the marriage.

Any other children you may have will need to seek legal advice and may end up in a long and costly court battle.

Legal right share

If you die without making a will, or a valid will in accordance with the law, the rules of intestacy will apply. This means that the law will apply and will determine how your estate is to be distributed. It also means that your family will need to take legal steps in order to deal with your assets.

The rules of intestacy set out the order in which your family will inherit your estate. Your spouse or civil partner is always first to inherit your estate when you die, along with your children. Next are your parents, then siblings, nieces and nephews and so on.

“Legal right share” means that on your death, your spouse is automatically entitled to a legal right share of one third of your estate. The remainder will be distributed between your children. This is a mechanism which was introduced in order to protect a spouse who may not own the family home, as a way of securing their accommodation and wellbeing for the remainder of their life.

Cohabitants Act 2010

The Cohabitants Act was introduced in 2010 in order to protect cohabitating couples and applies to both same sex and opposite sex couples. Cohabitants do not have the same rights as a married couple, despite the 2010 Act. The Succession Act does not apply to cohabitants, meaning there is no automatic right to a share in your partners estate on their death. The only exception to this is if you own joint property with your cohabitant. The remainder of their estate will be districted in accordance with the rules of intestacy.

However, in the event that your cohabitant has included you in their will, you will be considered as a stranger and not a family member. This means that inheritance tax will apply at 33%.

Section 117 Succession Act: failure to make proper provision for a child

A claim under section 117 of the Succession Act 1965 relates to claims against an estate. Specifically, it means that proper provision was not considered given the specific circumstances of the deceased family. Any child of a testator can make an application to the High Court in accordance with Section 117 (of the Succession Act 1965) seeking proper provision for them to be made under the will. The Court will then consider the number of children, their financial means and individual circumstances, their age and if the testator has already made provision for that child before their death. An application of this nature must be issued within six months of the date of the Grant of Probate. A Testator may owe a moral duty to an adopted child also, depending on the family circumstances.

In M v M 106 ILTR 82, the Testator’s wife informally adopted the plaintiff who was then a boy three years old. In 1954, when the plaintiff was 16 years old, the testator and his wife adopted the plaintiff formally. No provision was made in his will for the adopted son. The Court determined that the Testator failed in his moral duty to make proper provisions for his adopted son.

Seek proper legal advice from Probate Solicitors on how to make a will in order to avoid a long legal battle for your family when you are gone. Bear in mind that you can change your will as often as you wish.

© Carmody Moran Solicitors LLP

 

Any unauthorised reprint or use of this material is prohibited. No part of may be produced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage or retrieval system without the express written permission of the author and Carmody Moran Solicitors LLP.

While every care has been taken in the production of this article, no legal responsibility or liability is accepted warranted or implied by the author, editors, publishers or Carmody Moran Solicitors LLP  in respect of any errors, omissions or misstatement. This article is intended as a guide only and does not purport to be legal advice.  Readers are advised to seek independent professional advice before acting on anything contained herein. Publication of legislation in this book does not indicate that any particular provision in a stature or statutory instrument was or currently is in force

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