Freya’s* mother died and she is the executor of her mother’s will. In spite of her mother ensuring a will was in place dividing her assets equally among her children, one of Freya’s siblings is no longer speaking to her. Freya believes “money and grief bring out the worst in people”.
Her sibling “just thought [they were] going to become a millionaire”, Freya says. Freya feels that because she is the executor she got “the blunt end of the stick”. Freya and her sibling have disagreed on Freya’s approach to practicalities, with Freya saying her sibling called her a “bully” on occasion.
The value of the house is a sticking point, with Freya saying the sibling is querying her decision to accept the professional valuation. Freya has found the whole situation to be very stressful and upsetting. “It’s on the back of my mind the whole time,” she says.
After Sally’s* mother died, some years back, her father began dating another woman and, after a few years, he remarried.
When her father became ill, Sally says it was very difficult for his children to get time alone with him. “She was always in the room,” Sally says. Sally and her siblings remain “convinced that something was changed in the will”, she says.
Sally says her father was trying to sell the family home before his death. He had never lived in the family home with his new wife. She had her own home. “He wanted to try and sell the house to make sure [we would] get the proceeds of that.” But, “he died before the house sold and then legally she gets half. She had never lived there,” Sally reiterates.
Sally still finds discussing what happened very upsetting. Her father’s new wife had children from a previous relationship, she says. Sally says they will ultimately get what Sally believes she and her siblings should have inherited.
“It would have made such a difference to us,” she says. Sally says she and her husband have taken steps to make sure the same thing could never happen to their children.
Caroline* thinks “a lot of people underestimate the importance of having a will and being super clear about what that will means, and how they want it to be carried out after they pass on”. She has seen first-hand how a lack of clarity can lead to family arguments and division.
She tells of an aunt who had a large number of nieces and nephews. In her will, the aunt distributed property and money between the nieces and nephews. While the benefits were different for a number of individuals, Caroline believed the aunt had been very fair.
The will, however, was contested. “What resulted was years of all of those siblings not talking,” she explains. “It was really fractious. There were a lot of solicitors’ fees involved. It was really, really tense. There were no family events, and it took another death for most of the family to reconcile.”
Caroline says it was “incredibly sad that something so well-intentioned and so well-thought-out could still result in fractious tension. Cousins not talking to each other. People not meeting new babies. It was really horrible.”
She believes people “need to have conversations about what’s in the will before they die. People just aren’t clear and there hasn’t been that one conversation to say, ‘This is what I want. This is why I want it. This is what’s going to happen.’”
Doreen* and her ex-husband had young children. Before their divorce he had taken over his family’s farm. When he died unexpectedly, her children were devastated at the loss of their father. But Doreen says she was told that neither she, nor the children, were welcome at the wake.
Her ex-husband did not leave a will. Doreen says she was contacted by someone she knew to notify her that her ex-husband’s family were removing anything of value from the farm.
“There isn’t a thing left,” she says. “They [her children] haven’t a thing belonging to their father.” Because there is no will and she and the children have no access to his personal belongings, she says they cannot provide proof of the assets that he had, adding that they have involved solicitors.
“If he had made a will we wouldn’t be in this position,” Doreen suggests. She says the children have asked for some personal items – such as their father’s phone which has videos and photos of them having fun with him, his wellies, and wedding ring – but they can’t get access to anything, she says. “It’s a massive mess.”
Carla* is one of a number of siblings, but when their mother became ill, all responsibility for her care fell on Carla, she says. She gave up her job abroad to return home and become her mother’s carer.
She says one sibling who was living abroad did not come home for the funeral.
“My mother had been sick for a long time before that ... she was in a nursing home and there was no sign of [this sibling] ever coming home.”
But a few weeks after their mother’s death, Carla says her sibling returned wanting to know who were the executors of their mother’s will and “when’s it going to be sorted”. Her mother owned two houses, and had given one of the houses to the sibling who was abroad while she was still in good health.
The sibling’s return looking for more from the will made Carla feel “pissed off and really annoyed”. The other siblings are also annoyed, she says. Carla feels it would have been fairer if the house given to this one sibling had been shared between all the siblings.
Carla and her sibling don’t speak.
Maeve’s* mother died when she and her sister were young adults. Her parents had separated, and Maeve’s mother had a will and had set up a trust fund for her daughters. “The trustees were literally going to be taking care of all financials for us as if we were still kids without a parent,” Maeve explains.
Neither she, nor her sister, was aware of how much the trust fund was, or when it was likely to run out, Maeve says. “Bills, shopping, ESB, gas, groceries were all taken care of, but we didn’t know for how long. We didn’t really understand the concept of money then. It was just, ‘You’ve lost your mam. This is all taken care of, so you don’t have to deal with this.’”
Maeve says while she and her sister had jobs, and her sister went to college, they still “misused that money”.
“We took advantage of the fact that we could have a party if we wanted to.”
Maeve’s mother had made a provision in her will that “no boyfriends were allowed to move into the house. It was to be just me and my sister and if that was the case we had to split the house and move out,” she says. So, when Maeve became pregnant some years later, the trustees informed her that she would have to move out, as otherwise the baby could acquire some rights to the property.
“I had to move out before the child was born,” she says. “We had to put the family home up for sale, split it and move out. It was quite sudden.” At the same time, the trust fund money ran out. “It was mental. Absolutely mental,” she says now of that time.
The sisters have both since bought their own homes.
Ailbhe’s* mother died last year. Her mother had a will and left everything including a house, land and money to Ailbhe. She was also responsible for the care of her disabled sibling. “I had to provide a home for my brother for the rest of his life.”
Ailbhe’s mother had multiple bank accounts and had saved some of the carer’s allowance she had received for her son, to provide for his care later in life. “If she didn’t spend it, she saved it for him,” she explains.
“I have to pay it back,” Ailbhe says. “When I queried it, they said it was undeclared income she had. Women of that age were very frugal and she just saved and slaved, and she did it for him, and for his benefit.”
Her mother had put nothing in Ailbhe’s brother’s name “as it would have to go into Fair Deal”, she explains.
Ailbhe’s experience has led her to advise “anyone who’s getting carer’s allowance, make sure they spend it”.
In conversation with Jen Hogan. *Names have been changed
‘As solicitors, we should try to bring families together’
“Sometimes I ask myself, am I a solicitor or a psychologist?” says solicitor Elaine Byrne. “In probate practice, there is law and psychology in the mix. Wills come down to people.”
Byrne, whose practice in Athboy, Co Meath, specialises in wills and probate, has seen enormous hurt and tension when parents fail to include all of their children in their will.
“Everyone wants to be mentioned at least, to feel loved. No child, whatever their age, wants to think Mammy or Daddy does not love them. A lot of probate is based on people feeling hurt.”
Some people who come to her feeling aggrieved about a will may not have any legal point to raise, she says. “They often just want someone to listen.”
Maintaining communication among family members is crucial, Byrne stresses. “As solicitors, we should try to bring families together and mediation is always to be encouraged as opposed to court proceedings.”
A will is “very difficult” to contest, she points out, and being clear about the “very high” costs of doing so can act as “a wake-up call” in many cases.
When assisting a person to make their will, Byrne takes detailed instructions. In some cases, she says she felt it necessary to advise the person that it is “not a time to be vengeful” and to give all of their children “something”.
There is “a huge difference” between being married and in a relationship when it comes to distribution of estates and, in cases of blended families, probate can be complex, she adds.
The safest way to protect an asset is to transfer/dispose of it during the owner’s lifetime in accordance with their wishes. Funerals and burial plots should be among the matters addressed in wills because her experience is they can prove the source of bitter disputes after a death.
Having a good and fair executor or executors is key to minimising the potential for conflict, she says. Executors may “take a lot of flak” but having a good one should mean, in the end, “all will be fine”.
Wills should ideally be made when the person is in good health, not at the last minute, and hospital situations in particular are “not ideal”. Where it is a hospital situation, best practice would dictate that the solicitor attending would take instructions without beneficiaries present and seek medical opinion about capacity and any medication being administered, she says.
Richard Hammond SC, a solicitor and partner in Mallow-based Hammond Good LLP, and a member of the Law Society’s Probate, Administration and Trusts committee, says two categories of people should make a will, and both cover almost everyone.
Category one is those who have children because, irrespective of the allocation of assets, a will can address situations including the appointment of trustees to manage assets, and guardians to rear children, should anything happen to the parents.
The second is anyone with assets worth more than €10,000. “Many of us are often worth more dead than alive.”
Hammond’s clients have ranged in age from 19 to 91 and some of the younger ones came to him after seeing “a mess” arising from the lack of a will.
The most common stages when wills are made include when buying a house, when children arrive, when children are grown up and when people enter their 60s and beyond.
Making a will means people can deal better with the “what ifs”, such as the death of a spouse or children, separation and divorce, loss of capacity, he says. A crucial factor is they can decide who they want as executor, who has a key role in ensuring the testator’s wishes are given effect to.
Too many people wrongly assume that if they die intestate – without making a will – everything will be equally divided, says Hammond. Another important difference between dying testate and intestate is that any person with an interest in the estate can take out the grant of probate “and they may not be the one you want”.
“A will that is well drafted by a solicitor offers a better chance of reducing disputes,” says Hammond. He strongly endorses comments by High Court judge Siobhán Stack, who manages the court’s probate list, that people should avoid home-made wills or template “fill in the blanks” wills available on the internet. Most people have no knowledge of the impact of the Succession Act on their assets but solicitors do, he stresses.
People often believe making a will is “quick and simple” but it takes time, he says. The wills he normally drafts include three wills in one, taking into account factors including whether the testator, for example, is the last spouse and providing for contingencies including where the primary beneficiaries, often a spouse and children, are no longer there.
People should be “candid” with their solicitor when making a will, he advises. They should instruct, for example, about any vulnerabilities, problems or rifts in the family, particular circumstances, business disputes and caring responsibilities.
A will “can never be totally future-proofed” but a properly made one can reduce the potential for disputes and challenges, he says.
In his view, people should tell their executor of the fact of making a will but should not disclose its contents to those expecting to be beneficiaries. That might avoid the testator having to deal with resentment, or efforts to persuade them to change their will, when they are older and perhaps more vulnerable, he says.
Irish people have a lot of testamentary freedom compared with some countries and it is for them to decide what to do with their assets, as long as they stay within the law concerning matters including spousal and children’s rights, he says.
When it comes to allocating assets, “it’s not a democracy”.
In conversation with Mary Carolan
