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Hello, My question is on Intestacy. I am the youngest…

Hello, My...
Hello,

My question is on Intestacy.

I am the youngest of 6 adult children.

In 1977 our father died intestate leaving an estate of a house and farm land.
I was five years old and all children were under 18.
According to the Successions Act our mother was to recieve 2/3 of the eatate and 1/3 going to the children, or 1/18 to me alone.
My mother never mentioned this to me or anyone.

In 2007 our mother died and willed all the estate to my sister.
She has her own family and home and lives quiet comfortably.
I am now 40, single, unemployed and living in poverty.
The othersiblings are all doing well in their own lives.

My sister is also executer of the will and has not completed probate.
The home house still lies empty.

This will has upset all our family greatly. However my sister is quiet pleased with it and has had no contact with us for many years and seems hostle to us all.
The rest of the family are very sympathic to my position.

Anyway, is it possible for me to claim my 1/18 of the estate?

If my siblings were to sign their share's over to me could i claim 5/18 of the estate?

As 5/18 or 1/3 of the estate would equate to the house and put a much needed roof over my head. And it may convince my sister to give it to me.

I understand it may be difficult to take such an action to court, but if it were to get to court what view would a judge have on the matter?

Hope you can answer this.

Regards,

Noel
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Answered in 22 minutes by:
1/16/2013
Ronan
Ronan, Solicitor
Category: Republic of Ireland Law
Satisfied Customers: 2,264
Experience: B. Corp Law, Ll.B. Dip Comm Prop. In general practice for more then 6 years
Verified
Any claim against the estate of your father's estate would be statute barred given the length of time. However you might be able to take a claim against your mother's estate. She would of been your father's next of kin and personal representative in the distribution of his estate. She would has have been the trustee for 1/18 share for each of her children. You may be able to make a claim against her estate for this share. However again you may be statute barred as this should of sought with 6 years you becoming an adult.

Added to this you may find that your father's estate had very little in it. If the family home was in joint names then it passed automatically to your mother by survivorship and did not form part of the estate of your father

You should contact the Probate office and take up a copy of your father's letter of administration in his estate. This will give you the total value of the estate and the administator in his estate

Basically, what I am say is a claim against your father's estate or suing your mothers estate is unlikely to succeed and if it did, the pay out would be small

However, there is s much easier and better solution to your problem. You can make an application under section 117 of the Succession Act against the estate of your mother

Under the Succession Act Section 117 provides that if the Court is of the opinion that a Parent has failed in his moral duty to make proper provision for a child then Court may then Order such provision be made as it thinks just. In doing so, the Court shall consider the Application from the point of view a prudent and just Parent taking into account the position of each of the children and any other circumstances it considers may be of assistance.

Any Order made by the Court under this Section cannot affect the Legal Right of a surviving Spouse (one third of the Estate where there is a child or children).

Only children can make an Application under this section of the Succession Act, 1965. The provision is not about equality or fairness between children but rather the Applicant child must establish that there was a need for provision to be made for that particular child greater than that made by the Deceased either during his lifetime or under the terms of his Will. Otherwise the Parent has full testamentary freedom (subject to Legal Right shares).

Accordingly, feeling aggrieved that someone else has benefited to a much greater extent is not sufficient. There are however many examples of cases where such an Application has succeeded and the criteria have been laid down in Case Law over the years. The Testator has a moral duty to act as a prudent and just Parent would do. He is expected to take cognisance of foreseeable contingencies that will arise after his death. He must take into consideration the position of all children.

Where there is a possibility of such an Application being made great care must also be taken in relation to the Statutory Time Limits. Action should be taken immediately and any child wishing to pursue such a course of action should contact their Solicitor immediately with a view, in the first instance, to entering a Caution and also with a view to issuing Proceedings.

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Customer reply replied 5 years ago

Yes i understand.


I am taking a 117 section claim. Sorry didnt mention it.


 


My question is if my brothers and sisters said they were willing to give me their share in the estate (5/18). I could then make a case for that share 5/18 of our mothers estate? Even though it is outside the time limit


 


MY father owned it in total,


It was valued 500,000 six years ago

You would not be taking the Section 117 against your father estate as you are statute barred. The claim is against you mother's estate who died testate (with a will) Therefore your siblings share of your father's estate under intestacy are not relevant and pertain to a different estate anyway
Ronan
Ronan, Solicitor
Category: Republic of Ireland Law
Satisfied Customers: 2,264
Experience: B. Corp Law, Ll.B. Dip Comm Prop. In general practice for more then 6 years
Verified
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