Over ten years have passed since my mother died, and there has still been no resolution regarding her estate. She owned a large parcel of farmland, and since her children had all moved away, she shared her home there with one of her sons. Despite the tensions between them, they managed the farm together before her illness.
As her physical and mental health declined significantly, my mother found herself reliant on my brother for numerous aspects of everyday life including transport, grocery shopping and medical needs. In light of this, my brother gradually assumed responsibility for the farm’s operation, also maintaining control over her financial affairs. This led him to hold her legal documents, transferred from her own solicitor. Communication between my brother and the rest of the siblings is sparse.
A few weeks following the funeral, my brother and I visited the solicitor who was handling my mother’s estate. He informed us that our estranged brother, the copartner in managing the farm, was the assigned executor. His instructions were that he shall disclose no information to anyone. Any request for a copy of the will has been repeatedly denied. With a decade having passed, I remain unaware of what my mother’s final wishes were.
Despite numerous attempts by us with countless letters to the solicitor as well as registering formal objections, our efforts to get a response have been met with little success. We enlisted the services of a solicitor two years ago in the hopes of procuring the will. However, spending €20,000 proved futile as he could only estimate that to take the matter to court might cost between €300k-€400k. We were unwilling to risk this amount of money.
As of last month, there is still no resolution to the issue of my mother’s farm, which remains registered in her name. There has also been no application for probate as confirmed by the probate office recently.
I am reluctant to hire another solicitor and put more of my own hard-earned money at stake for an issue I did not cause. I am now considering public appeal and bringing this to the attention of legal regulators. Any opinions would be appreciated, even if they are general in nature.
Regrettably, it’s far from uncommon in Ireland to encounter family disputes of significant intensity, causing land to be left barren and properties to sit unoccupied, owing to disagreements within generations or unclear succession.
In the bottom of the matter it’s perfectly obvious: your mother passed away over a decade ago, there was a will (there could potentially be others you’re unaware of), your brother who lived with her is the executor of her estate and progress has been stagnant in terms of formalising the role. This most likely stems from a profound undercurrent of resistance and resentment.
Regarding Irish law on wills, the right to read a will is not bestowed automatically until probate is granted. Once that occurs, the will becomes a public record, obtainable by anyone for a charge. However, prior to that the will is strictly accessible at the executor of the estate’s discretion, in your case, your brother. Even the attending lawyers are bound by their professional conduct- they are unable to share the the will’s details without the executor’s permission.
On the flip side, in my experience, any executor who denies immediate family members – siblings or offspring – access to a will without substantial reason, is generally deemed concerning.
Additionally, it’s customary for the executor, or a lawyer on their behalf, to inform beneficiaries of their inheritance from the estate, although there is no legal mandate requiring them to do so until they’ve taken care of all necessary legal and financial obligations to secure probate.
Though the executor possesses extensive authorities in their role, they aren’t inappropriate to contest. Firstly, there’s the “executor’s year” notion. This basically signifies that a legal challenge will not be considered within the first year following the death of the individual who’s the subject of contention over the will in question. This stipulation exists to allow the executor an appropriate period of time to gather the estate’s financial assets, pay off any unsettled debts and finalise any paperwork required for securing probate.
In this particular situation, it’s certainly evident that were are far past this stage.
One element that merits reflection is the necessity for the will to undergo probate. It is common for most wills to do so, especially when estates involving land or property are in question. There is however, an exception to this rule. This happens when the property or land is under joint ownership and consequently transferred to the surviving owner through survivorship rights, excluding the asset from the estate.
Based on your correspondence – which I have significantly condensed – your mother held full ownership of the farmland and was actively farming it. Although your brother resided with her, their relationship held considerable tension and there was no hint of her transferring the property into joint ownership.
Confusion arises when considering the possible occurrences between your mother getting sick and her passing. During this time, she would certainly have required additional support. Nevertheless, recent investigations reveal that the land still stands in your mother’s name.
I empathise with your exasperation regarding the events transpired over the past years and your hesitation to re-enter the legal sphere following your past experience. Moreover, I understand your worry about the potential expenses.
However, bearing in mind the size and location of the estate, it represents a considerable asset potentially worth over €1 million as per statistics from the Society of Chartered Surveyors and Teagasc.
Given your brother’s apparent reticence to cooperate and his inaction over multiple years, I must advise that your only possible resolution will be achieved through employing a solicitor and, if necessary following a final warning letter to your brother, initiating legal proceedings.
Lodging a complaint with the Law Society can be considered but I strongly suspect they would conclude the blame for any postponement falls not upon the solicitor, but the client.
We’re looking at several legal complications here. Initially, we must establish the existence of a will. I’m taking it for granted that one exists since your brother’s legal advisor identified himself as the executor. Furthermore, we need to know when this will was agreed upon. If it was only established after your mother fell sick, we need to question her legal capacity at that point – was she competent enough to make a will or is it therefore invalid? In case that it is deemed invalid, the matter would have to be decided by the court. The last will that was agreed upon prior to her illness would then be recognised as the valid one. The question arises, where can we find this will?
Any claims against the will’s validity will have to be lodged within six months following any probate, although that seems to be a matter of insignificance at this point.
Was there any exchange of land in joint ownership that could bypass the requirement for probate? Based on your preliminary findings, it seems unlikely, but if there was, and merely the documentation is lacking, again we need to question whether your mother was in a fit state to enter such an agreement after she fell sick? It appears evident to you that it couldn’t have happened beforehand.
Lastly, why has probate not been sought in the past ten or so years? On this basis, you might contend that the executor was either reckless or intentionally avoiding his duties in this role and call for his disqualification by the court.
Taking these issues to court would mean filing a case in the High Court, an idea that could understandably cause concerns over expenses as High Court proceedings can quickly become costly. Nonetheless, if you can demonstrate that the executor has not acted sensibly in fulfilling his duties, the court may order that he assumes the costs personally, not from the estate.
Whilst the legal system might fuel frustration and seeking formal legal action should not be taken lightly due to uncertain outcomes and potential high costs, there appears to be no other feasible option in this case. Based on your description, and notwithstanding the fact that there are always two sides to an argument, your brother is currently treating the land as his own without conducting probate and entirely ignoring both you and the executor process that he has agreed to facilitate. His actions could potentially be his downfall.
If not, your only alternative would be to remove yourself entirely from this scenario, though your efforts thus far suggest that this isn’t a choice you are willing to consider.
For all your enquiries, we kindly ask you to direct them to Dominic Coyle at Q&A, found on 24-28 Tara Street Dublin 2, or alternatively, you may choose to send an email to dominic.coyle@irishtimes.com. Make sure to include a phone number for us to reach you. Please note, this column serves as a facility for our readers and shouldn’t be seen as an alternative to expert counsel.