# Contesting a will_advice please



## Swift_cee (23 May 2009)

Hi everyone, my fathers will is to be finalised. We have a meeting with the executor next week.

My mother and father seperated 20 years ago but never got divorced. My father went on to have 3 kids with someone else. He had a large property and a bit of land. 

There was a small provision in the will for my mother made by my father. Which doesnt amount to much. He has been dead for 2 and a half years now.

My question is can my mother contest what is offered to her? Does she have any claim to his property and land? In his will he left his posessions to the 'other woman' which we all felt was unfair to our mother.

Any advice would be greatly appreciated. Thanks


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## mathepac (23 May 2009)

That all depends.

Was there a legal separation in place? If so, what were the terms? Did your mother continue to live in the family home, or did she move out?

You need to gather up papers / agreements and seek legal advice as a matter of urgency, before meeting with the executor, or at least try to get a lawyer to that meeting.


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## Swift_cee (23 May 2009)

Hi thanks for your comments, my father moved into a private house which he purchased with his 'partner' and my mother lives in rented house payed by the social. They seperated and my father would ensure my mother had a few quid (150 euro)every week and that was it. 

The meeting is scheduled for Tuesday coming and my concern is that my mother is not going to be happy with her settlement, and I was wondering what she can do.


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## NicolaM (23 May 2009)

Is this helpful?
_Renouncing or losing rights under a will

It is possible for a spouse to renounce his/her rights to the legal right share. This can form part of an agreement prior to marriage, for example, in the case of a second marriage, or the spouse may set aside his or her rights in order to favour any children. However, any such renunciation may be ignored in certain circumstances, for example, if there is evidence of undue influence or evidence that the spouse did not understand what he/she was doing or did not have independent legal advice.

If a couple is separated, a renunciation of each other's right to the legal right share is usually included in a separation agreement. Divorce, however, automatically ends succession rights._

_Unmarried partners have no automatic legal right to each other's estates, although partners can make wills that favour each other. *These wills, however, cannot cancel out the legal rights of a spouse if someone is separated but not divorced.* _
Rest of text here : http://www.citizensinformation.ie/categories/death/before-a-death/making_a_will

This might be useful to you.
I think your mother should see legal advise on this however, as she may have rights on your father's estate, if they did not divorce, as per Irish constitutional law.

Nicola


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## johnny1234 (23 May 2009)

I'm not a solicitor but I would suggest you speak with a solicitor on Monday to learn of your mother's and your own rights. Trying to obtain absolute correct information from a forum is a waste of valuable time.


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## NicolaM (23 May 2009)

I am not a solicitor either, but it can be useful to get some opinions as to what may be helpful, this situation having gone on for over two years so far. 
The above link points to the legal rights in a separated but not divorced situation, by the way, which might be of benefit for the OP.

I suspect getting such opinions on a _Saturday night_ is not a waste of time for the OP, and may in fact prove quite useful, pending an appointment with a solicitor. The rights of the 'family' ( a married couple and their progeny), and succession rights,  have a constitutionally strong position in Irish law.


Nicola


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## Swift_cee (23 May 2009)

Thanks alot for that


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## NicolaM (23 May 2009)

I hope it goes OK for you and your family.
You do need to engage a solicitor though++

Nicola


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## johnny1234 (23 May 2009)

Nicola, apologies I wasn't trying to belittle your efforts. I just do not think information over a forum should be used as concise or gospel.


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## Swift_cee (23 May 2009)

Thanks Nicola, yeah I know that all the facts and figures are not presented, its more of getting some expert advice and good sound second opinions. Which I have found useful, thank you all.

My main point is that my mother never divorced my father, my mother had 4 kids for my dad and I feel she should be looked after, I feel that because they never got divorced she could have more of a claim to the estate


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## NicolaM (23 May 2009)

Johnny, I absolutely agree with you, relying solely on a forum for issues like this would be a bad idea.
But hopefully it'll give the OP some idea where to start from, before they see a solicitor

Nicola


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## Swift_cee (23 May 2009)

Dont worry Johnny I'm not taking print outs of the forum to court! joke, just after some good advice, and its been most helpful


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## NicolaM (23 May 2009)

As an aside, I have a friend in a similar situation, where her parents never divorced, but separated >25 years ago.
I would be concerned of something similar happening in her situation (more from her  father (who abandoned them) having a claim on her mother's estate, if , God forbid, something happened to her mother).

Nicola


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## NicolaM (23 May 2009)

You of course, also have succession rights too Swift, although you probably already know that,

Nicola


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## Swift_cee (23 May 2009)

In my mothers case Nicola, my father committed adultery and left my mother for the 'other woman' who he set up home with, we always felt that our mother should have been provided her own home as in a divorce Im sure my father would have had to provide. I feel my mother got short changed.


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## NicolaM (23 May 2009)

Have you engaged a solicitor yet, if you don't mind me asking?

Nicola


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## NicolaM (23 May 2009)

(I ask purely because if you haven't, it's really important that you do)

Nicoola


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## Swift_cee (23 May 2009)

NicolaM said:


> (I ask purely because if you haven't, it's really important that you do)
> 
> Nicoola


 

My mother has had solicitors on the case, but you know what Nicola all I know is there is a bill for 1500euro! and thats about it. I'm going to speak with my mother in the morning and get this all sorted. I don't understand how she has been billed and we're only going to the meeting next week to meet the executor?


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## mf1 (25 May 2009)

Swift_cee said:


> In my mothers case Nicola, my father committed adultery and left my mother for the 'other woman' who he set up home with, we always felt that our mother should have been provided her own home as in a divorce Im sure my father would have had to provide. I feel my mother got short changed.



Your mother appears to have been astonishingly passive and appears to have never taken any steps herself to assert any rights or entitlements she may have had. By all accounts the marriage ended 20 years ago. 

It may very well be that your father has taken (legal) steps to regularise his position and that the rest of the off spring are not aware of it. It may equally be that he chose not to educate himself about the legalities of a spouses legal right share in which case your mother may have a greater claim. 

"I don't understand how she has been billed and we're only going to the meeting next week to meet the executor? "

Perhaps your mother sought legal advice from an independent solicitor who charged her for the advice? 

mf


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## homeowner (25 May 2009)

If they didnt legally seperate, then I am pretty sure your mother is entitled to your father's pension as his legal wife.  Your mother should at the very least chase that.


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## j26 (26 May 2009)

They separated 20 years ago - judicial separation only came into existence in 1989 which is 20 years ago.  It is entirely possible that the separation was informal and prior to the 1989 Act, in which case your mother is entitled to her share (1/2 or 1/3) under S111 of the Succession Act, 1965 (have a look at the following sections too).

Separately you might be entitled to make a claim under S.117 if your father "failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise"


But I get the feeling your mother knows a couple of more facts than you do.


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