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Ask Buachaill Your Own Question
Buachaill, Lawyer
Category: Republic of Ireland Law
Satisfied Customers: 10110
Experience:  Barrister 17 years experience
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I was more than pleased with the service u gave me last january.My

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I was more than pleased with the service u gave me last january.My current question is to do with the contestation of my brother´s will.He died last december,I am not a beneficery and have no claim,my interest is that he was also my friend and I would like to see his last wishes fulfilled.He was married twice,firstly in Canada, widowed with five childen.He returned to Ireland,the children stayed in Canada.He remarried and had two more children.A year or so before he passed on he gave the children (youngest 40) in Canada presents in the region of fifty thousand € each explaining that this was their bequest,being adults they could use the money as they pleased and would receive nothing from his estate in the event of his death.(at this time although his health was not good his death was not imminent,in fact he travelled regulary to visit me in Spain. A couple of days after the funeral ,his wife,having been separated for two years and who along with another brother was joint executive,went with his two Irish children (19-25) to his house and found his will,I opened the will and was the first to read it´contents stating that the remainder of his estate was to go to his wife and two children in equal parts,it also contained a letter saying why nothing was left to the others(as mentioned above).Through an Irish solicitor acting for the Canadian children his solicitor was advised that they were contesting the will.
1. At the outset, there is nothing to prevent the five Canadian children contesting the will. It is within their right to do so. However, the relevant provision under which they can challenge the distribution - section 117 of the Succession Act 1965 - only applies where the testator (the person who has died) "has failed in his moral duty make proper provision" for the claimants. Unless the estate is exceptionally large, this has already occurred by the deceased providing for them whilst he lived in Canada, educating them and also in giving them €50k a few years back for their own needs. The hurdle to be crossed by the Canadian children is very high. Here it simply cannot be said that your brother failed in his moral duty to those children. Quite the opposite.
2. Remember that if your brother had died without a will, then all these children would each be entitled to would be one-twentyfirst of his estate, as the legal right of all children is only one third on intestacy and there are seven children. So you need to realise that a court would not grant them much, even if they were meritorious claimants. So I fear that they are simply being badly advised, maybe on the basis of Canadian law. Irish law will not grant them anything. It will only cost them legal fees.
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