# deserted family and subsequent will



## Dow (26 Nov 2013)

I am just wondering what the case might be in this situation
Family with children, split up, mother cares for children, father ignores responsibility to make any provision to help raise children financially or otherwise, for children of his first family (from marriage),he then has other children, who have his name but the parents could not have been married.
All children are adults now, if the father dies can the first children contest or see any will or his disposed assets, no provision was made for the original family when growing up.


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## mf1 (26 Nov 2013)

Yes - is the simple answer. But why would they do it? Why now?

This link gives some very good insight. 

http://www.donaghys.ie/Succession_Rights_of_ChildrenSection_117_Applications/Default.27.html

mf


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## Bronte (26 Nov 2013)

A will is a public document so you will be able to see it, once it's gone through probate.  Is the father dead and is there a will?


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## Jim2007 (26 Nov 2013)

Dow said:


> All children are adults now, if the father dies can the first children contest or see any will or his disposed assets, no provision was made for the original family when growing up.



Could the contest it? Yes.  Would they get anything as a result, unlikely if they are all grown up, as there is no requirement to make provision for adult children.


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## Bronte (26 Nov 2013)

Jim2007 said:


> there is no requirement to make provision for adult children.


 
Nor is their a requirement to make provision for dependant children. You are allowed disinherit your children. 

Whether in this case the adults would get something will be based on the circumstances of each child and how they were financially and otherwise taken care of by the father. Just the fact of taking a case would presumably mean some executors, with beneficiaries agreement, settle, or offer something.

But it can be a risky and costly strategy, and one that has people fighting for years.


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## Dow (26 Nov 2013)

I am unsure if they are even his biological children, they may be, as they have his name.
but he could not have been married as he was only divorced recently, although its possible he may (only) be their guardian, but also possibly their biological parent, I dont know for sure.
If they are left something in that circumstance, Im wondering if his biological first born children be entitled to contest any will.
If a will is only seen after a death, can it still be contested then?
I consider the financial neglect on the fathers part had a significant outcome on how the then childrens lives unfolded.


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## Dow (26 Nov 2013)

Bronte said:


> A will is a public document so you will be able to see it, once it's gone through probate.  Is the father dead and is there a will?



I dont know if there is a will.
Can I find out about the existence of a will prior to it going through probate?
There is no contact with that person or his children (whether they are his biologically or under his guardianship)


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## huskerdu (26 Nov 2013)

Dow said:


> I dont know if there is a will.
> Can I find out about the existence of a will prior to it going through probate?
> There is no contact with that person or his children (whether they are his biologically or under his guardianship)


 

I assume that the father in question has actually died. 
If not, then the will has no legal standing, and is effectively a private document of the fathers and no one has a legal right to see it. 

If he has died, any person can ask to see the part of the will that they are mentioned in, but not the entire will. 
I don't know how you find out about the will, unless you know who the executor is.


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## Dow (26 Nov 2013)

huskerdu said:


> I assume that the father in question has actually died.
> If not, then the will has no legal standing, and is effectively a private document of the fathers and no one has a legal right to see it.
> 
> If he has died, any person can ask to see the part of the will that they are mentioned in, but not the entire will.
> I don't know how you find out about the will, unless you know who the executor is.



But if you are not mentioned and the will has not been through probate,
can you contest it under the above mentioned succession rights of children Section 117? or can you contest it after probate has completed?
Would each (adult) child have to contest it individually?


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## Bronte (27 Nov 2013)

You're taking a very agressive approach Dow? You can not find out about a will now if the man is not dead. Is this a vast sum of money, how many children. It is of no relevance if the man's second family are from a relationship without marriage. 

Would you and your siblings not be better off ignoring the second family and getting on with your own lives.  Please be aware that the estate might be eaten up in legal costs.  That his current children may need an inheritance, particularly if they are young.  And that some things are not worth fighting for.


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## Jim2007 (27 Nov 2013)

Dow said:


> But if you are not mentioned and the will has not been through probate,
> can you contest it under the above mentioned succession rights of children Section 117? or can you contest it after probate has completed?
> Would each (adult) child have to contest it individually?



Perhaps a comment from  Mr. Justice Nicholas J. Kearns on Section 117 X.C. v. R.T.(Succession: proper provision) might help you understand it better (emphasis added):



> The social policy underlying section 117 is primarily directed to protecting those Children who are still of an age and situation in life where they might reasonably expect support from their parents, against the failure of parents who are unmindful of their duties in that area.



Section 117 is primarily designed to ensure that under age children and students are provided for on the death of a parent or possibly guardian.  It is not intended to right the wrongs of the past, no matter how aggrieved you feel.

You can of course contest the will, but on the basis of what you have said I'd think there is a every chance of a large legal bill not not much else.


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## ClaireM (27 Nov 2013)

Presumably the first family need to find out if there actually is a will.

If the father has died intestate would the children not  have rights, particularly if he had not married his second partner?


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## Dow (27 Nov 2013)

Bronte said:


> You're taking a very agressive approach Dow? You can not find out about a will now if the man is not dead. Is this a vast sum of money, how many children. It is of no relevance if the man's second family are from a relationship without marriage.
> 
> Would you and your siblings not be better off ignoring the second family and getting on with your own lives.  Please be aware that the estate might be eaten up in legal costs.  That his current children may need an inheritance, particularly if they are young.  And that some things are not worth fighting for.



I am making an enquiry, I dont know why you consider it aggressive.
At the time the person in question declined to make any maintenance payments during the course of the childrens upbringing (this would be me and my siblings), other than getting into exactly what happened, as there is so much more than that, Im just not including other specific details as I dont think its really relevant to enquiring about potentially contesting a will.
  I am very sure at the time, there was a court order to make maintenance payments, but Im not familiar with how that works, I just know it wasn't followed up because it was felt better to stay away from that person by the person making the decisions at that time.
Regarding the children I am just stating what I know, Im unsure if they are his biological children or not, but they could not be from marriage, not that Im saying thats relevant, Im just mentioning it as I know a divorce wasnt granted till later. I dont think they are significantly younger than us, I have a rough idea of the years, they are also adults now. 
  Its true, they may need an inheritance now, Im not sure how that need could be any greater than my siblings and I, but I feel we were substantially affected by growing up in poverty, when it didnt have to be the case. As I said, I dont feel the other children have done any wrong, I dont feel animosity towards them, I dont know them, and we have gotten on with our lives. While there was some mention of this with one of my siblings a few years back, it isnt something thats come up with them, but I have considered it.
 Im trying to find out, that if there is a will (or even if there isn't) can I or my siblings contest it in the event we are not included and that the other children who may or may not be his biological children are (or even others) when there are assets.

It seems as adults we might not be able, and Im trying to find out if there is a process to contest a will, more so if they are not his biological children, but even if they are, although I think they are. We wouldnt have a lot of money to proceed something like this, and to make it clear, it is not to punish the other children (who are now adults also).
Its probably too specific, I wanted to make an enquiry to see is there a legal process to contest a will under the above circumstances,


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## mf1 (27 Nov 2013)

"is there a legal process to contest a will "

Yes - see above posts. 

How much do you think would be in the estate? When he dies? 100K? 500K? 5M?

At 5M, it would be worthwhile. Anything below 500K, I believe a waste of time.

mf


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## huskerdu (27 Nov 2013)

I hope the information her so far, has helped. However, general advice can only go so far. 

At this stage, you need proper advice from a solicitor experienced in this area. 

The chances of being successfully are very dependent on the individual facts of the case and what legal precidences exist for similar cases.


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## Bronte (28 Nov 2013)

Dow said:


> Its probably too specific, I wanted to make an enquiry to see is there a legal process to contest a will under the above circumstances,


 

No I don't think you've been too specific Dow. In pain yes. No doubt that would be the situation. 

To be clear, all the children are adults, yes you can contest the will, and it looks like you have very valid reasons for doing so. It doesn't make any difference if the children of the second relationship are biologically his. He is allowed to make a will disinheriting your family, and he is free to leave his property to whomesoever he likes (apart from the legal right share of a spouse). So if he is divorced, your mother has no legal right share, but his new wife does.  But you are allowed to contest his will  

You have not stated how much the man is worth, and as the legal expert MF1 has told you, it's not worth going after if less than 500K I suggest you take his advice, particularly as you mention that you don't have a lot of money. As far as I can tell, these types of case take ages, and cost a lot, but it seemed to me in any judgements I've read that the costs were awarded against the estate. Meaning that the value of it was diminished by the legal case. But it's a risky strategy, what would you do if you lost and costs were awarded against you. 

For what it's worth, based on your post, I'd say you have a good chance of succeeding. Being left in poverty, no maintenance paid, and a wealthy man who took good financial care of his second family only would lead me to that opinion. Every case is different and looks like the facts of each case also depend on the judge on any given day.

Maybe he left no will, you'll inherit then anyway.


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## Jim2007 (28 Nov 2013)

Bronte said:


> For what it's worth, based on your post, I'd say you have a good chance of succeeding. Being left in poverty, no maintenance paid, and a wealthy man who took good financial care of his second family only would lead me to that opinion.



On the contrary, there is nothing in the succession act to allow it to be used to right the wrongs of the past - there were legal remedies available at the time which for whatever reason the family failed to pursue.  Adult children come along now claiming that because they or their legal representatives failed to take advantage of those remedies, deserve something is going to be a hard sell - unless the adult child is in some way incapacitated from leading a full and meaningful life.  Mr. Justice Nicholas J. Kearns has made several comments on the use of  Section 117 and it is well worth reading his comments in full.


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## mathepac (28 Nov 2013)

Bronte said:


> ...  For what it's worth, based on your post, I'd say you have a good chance of succeeding. ...


Unless you are a lawyer in possession of facts not posted here,  I think it is entirely inappropriate to voice this opinion.


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