Father's estate not distributed by executor after year..

[mercman]

Pulped - This is off the original OP. The fact that the deceased left his personal effects to his daughter immediately and that his partner had a lifetime interest in the Home and business and then reverting to the daughter on the demise of the partner, are the important matters in this case

 

[csirl]

While this is perhaps off the OP's topic the above quote is just simply wrong. Your analysis implies that children have some kind of automatic claim on their parent's estate. They do not. The moral duty of a parent to provide for their child is assessed not on the basis of the parent's means but on the provision that has been made for them during their lifetime and on their need as well. If a child has been well looked after by their parents and is in gainful employment and well settled in life then the courts would be unlikely to find that a parent had failed in their moral duty It is a subjective test applied by the court and not one that automatically brings benefit to the children.

I disagree. I think my analysis is correct - the legislation is very clear on this - the para below is Section 117 of the Succession Act. The phrase "in accordance with his means" is the important one. It is the deceased parents means, not the childs means that are taken into consideration. The childs means are not considered at all. This means that even a child who is a billionaire has to be provided for in their parents Will. Gifting a child an advance on their inheritance before dying is taken into consideration, but not raising a child correctly and them being in gainful employment.

117.—(1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.

 

[Pulped]

the paragraph following on from the one you quoted reads as follows.

(2) The court shall consider the application from the point of view of a prudent and just parent, taking into account the position of each of the children of the testator and any other circumstances which the court may consider of assistance in arriving at a decision that will be as fair as possible to the child to whom the application relates and to the other children.

This along with the failure in moral duty are what matter in determining an application under S117. The courts have demonstrated that where a wealthy testator leaves nothing to his children that is fine so long as he as not failed in his moral duty to them. For example the case of Re ABC: XC v RT [2003] 2 IR 250

 

[mercman]

And again I reiterate that in this Post the father has covered the Moral Ground by leaving the home and business to his daughter after the partner passes away, plus his personal valaubles. The OP has questioned the matter as to how does she secure her position.

 

[csirl]

And again I reiterate that in this Post the father has covered the Moral Ground by leaving the home and business to his daughter after the partner passes away, plus his personal valaubles. The OP has questioned the matter as to how does she secure her position.

Agree - moral ground is covered by what the father intended to leave. However the intentions of the father and what actually happened appear to be poles apart in this case.

 

[mercman]

And guess what, the OP appears to have gone AWOL. This is an interesting matter for which I would dearly like to see what happens and more important that the wishes of her late father are entertained on a fair basis without greed from others including professionals who have the knack to hover around like vultures in cases of inheritance issues.

 

[csirl]

He appointed his partner as executor to his Will, in which he left both his share of his property and the business to her in her lifetime

I'd be like to see the outcome of the business issue. Businesses are not static - can go bust. What checks and balances are in place to prevent the partner, through accident or design, from ruining the business thus preventing the OP from actually inheriting it?

 

[dazza21ie]

If your father left the business to his partner and then to you after she dies this would make her a life tenant. She would have the power to sell but she could only take the intetest earned on the sale proceeds.

As a beneficiary you have the right to enquire as to the progress of the estate. You should contact the solicitors who had been dealing with the file. They have a duty to beneficaries as long as they hold the estate file. If you do not receive a response from them contact the Law Society and make a complaint.

 

[mf1]

"You should contact the solicitors who had been dealing with the file. They have a duty to beneficaries as long as they hold the estate file. If you do not receive a response from them contact the Law Society and make a complaint. "



"and last month I was told that his partner has pulled out from her solicitors without transferring the matter to a new one. "

Why would OP lodge a complaint with the Law Society? Isn't the issue with the executor?

mf

 

[mercman]

Mf1 - Maybe, but the executor is the ex partner and they are not on talking terms. From reading the post, it appears that the executor has acted contrary to the terms of the Will. This is why she needs to find a different Solicitor URGENTLY.

 

[mf1]

Mf1 - Maybe, but the executor is the ex partner and they are not on talking terms. From reading the post, it appears that the executor has acted contrary to the terms of the Will. This is why she needs to find a different Solicitor URGENTLY.

Thank you but I'm simply making the point that the Estate's Solicitor does not appear to be at fault - rather the executor who has removed instructions from the solicitor. In those circumstances, there is no point in making a complaint to the Law Society about the behaviour of a solicitor who does not appear to have done anything wrong.

And it does appear as if the OP has had the benefit of his/her own solicitor's advices.

mf

 

[Blueberry08]

This means that even a child who is a billionaire has to be provided for in their parents Will.

If you literally mean a 'child', ie under 18, then you are correct.

If you simply mean 'child' of a deceased parent, even if that 'child' is an adult, you are 100% incorrect.

No adult 'child' is automatically entitled to a share of their parent(s)' estate if the parent(s) chose to exclude them from their Will. They can, however, challenge the Will under Section 117.

See [broken link removed].

Extract: "Children of the deceased do not have any fixed right to a share of the deceased's assets."

Also of interest: 2003 Section 117 High Court [broken link removed] where the judge rejected an action brought by three children against the Will of their father.

The judge's interpretation of Section 117:

1. the social policy underlying section 117 was primarily directed at protecting children who were still of an age and situation in life that they might reasonably expect support from their parents

2. at the time of death, the testator must be found to owe a moral obligation to his child/children

3. there is a high onus of proof on any child making a section 117 application which requires the establishment of a positive failure of the moral duty by the deceased parent

4. the duty created by section 117 is not absolute

5. section 117 does not create an obligation to leave something to each child

6. the provision of an expensive education or the provision of gifts/settlements made to a child during the testator’s lifetime might discharge the moral duty under section 117

7. special circumstances may give rise to a moral duty e.g. if a child was induced to believe that by working the farm, he may become the ultimate owner of it.

 

[Blueberry08]

While this is perhaps off the OP's topic the above quote is just simply wrong. Your analysis implies that children have some kind of automatic claim on their parent's estate. They do not. The moral duty of a parent to provide for their child is assessed not on the basis of the parent's means but on the provision that has been made for them during their lifetime and on their need as well. If a child has been well looked after by their parents and is in gainful employment and well settled in life then the courts would be unlikely to find that a parent had failed in their moral duty It is a subjective test applied by the court and not one that automatically brings benefit to the children.

I think the above - which is absolutely correct - is worth re-posting considering some of the incorrect information in this thread.

 

[csirl]

See [broken link removed].

Extract: "Children of the deceased do not have any fixed right to a share of the deceased's assets."

This link confirms exactly what I said earlier. And is correct, children dont have a right to a fixed share because it depends on whether they have been advanced money/gifts while the deceased was alive and if there is a spouse entitled to a right share etc.

Also of interest: 2003 Section 117 High Court [broken link removed] where the judge rejected an action brought by three children against the Will of their father.

This case is deals with a different set of circumstances to the OP. There are 2 fundamental differences:

1. In the case linked to by Blueberry08, the father HAD made provision for the children during his lifetime by providing them with money to buy a house before he died - as I've said before this is taken into consideration and is, in effect, regarded as an advance on inheritance.

2. All of the assets stayed within the family - i.e wife, children & grandchildren. And so his children or their heirs ultimately get everything as they are also the wifes heirs.


There is a fundamental difference between this judgement and one where:

1. NO provision/advancement has been made by the father before death.

and

2. The proceeds of the will are not going to the Wife or staying within the blood line i.e. the childrens mother and so will not ultimately end up with the children.

6. the provision of an expensive education or the provision of gifts/settlements made to a child during the testator’s lifetime might discharge the moral duty under section 117

This is the important phrase in the Judgement - i.e. that the father had discharged his Section 117 obligations by gifting his children money to buy houses during their lifetime - this does not apply in the OPs case.

The other thing that is taken into account is the childs conduct with the parent. If they had a normal relationship it would be viewed differently than if the child ignored or mistreated the parent.

In the end of the day, its a judgement call, taking into account all the circumstances, on the part of the Courts as to whether or not the child was treated fairly & this is why the legislation says no fixed amount is due. However, if there is no spouse and the child received nothing in the Will or advanced before the father died, then I it would be hard to imagine the Courts not giving a judgement in favour of the child receiving a fair share. The trust of the legislation is that there is an onus on a parent to help and assist their children in life and a prudent parent normally makes provision in his/her will for offspring in normal circumstances.

 

[csirl]

Back to the OPs original question:

We have no evidence that the OPs father has provided any substantial gifts before he passed away, so I am assuming that he didnt.

The OP did has not received anything of value from her father to date. And the OP has lost job and so is in worse position than before.

Therefore the OP has as good a case as exists for either off or both of the following:

1) the estate was not distributed along the deceased wishes

and/or

2) proper provision for child was not made.


On one of the OPs specific concerns. The partner is cannot sell the business unless it is in her name and it cannot be in her name unless it has gone through probate.

 

[Blueberry08]

This link confirms exactly what I said earlier. And is correct, children dont have a right to a fixed share....

You completely misread the relevant extract:

"Children of the deceased do not have any fixed right to a share of the deceased's assets."

Not, as you said, "a right to a fixed share" - there is quite a difference between the two.