# Problem with Father's will - bequest may be void



## Juliegaul (25 Mar 2010)

This is my first post, so I hope I am doing it right.  I am sole executor of my father's will (mother pre-deceased him).  He left the entire estate in equal shares to my and my three siblings.  The will was drawn up, he signed and it was witnessed by a nurse (who called daily) and my brother's wife.  I've been told that the gift of one quarter of the estate to my brother is now null and void and nothing can be done.  This is quite distressing for everyone.  Can anything be done to rectify this?  If not, have we a case against our solicitor because he was handed the will after it had been signed and witnessed (months ago) and never spotted that a spouse of a beneficiary had witnessed.  I don't want to sue our solicitor as he is sort of friends with some of the family.  Any suggestions or advice appreciated.  Thanks.


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## mathepac (25 Mar 2010)

Juliegaul said:


> ...   I've been told that the gift of one quarter of the estate to my brother is now null and void and nothing can be done. ...


Is this legal opinion or just pub talk?

It is my understanding that if a will is incorrectly witnessed, the entire will is null and void and not just a particular bequest, thus your father would be classed as having died intestate and you are not his executor.

I would question whether the will is incorrectly witnessed as your sister-in-law is not a named or otherwise identified beneficiary.

I am not a legal expert.


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## callybags (25 Mar 2010)

Is anyone contesting the will?

If not, then I don't see a problem in dividing the estate as was obviously intended by your late father,


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## Mpsox (25 Mar 2010)

The attached from the Citizens Advice Bureau clarifies things
http://www.citizensinformation.ie/categories/death/before-a-death/making_a_will

In effect your father died intestate and his estate will be divided equally between you and your brothers.


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## Padraigb (25 Mar 2010)

The bequest to the brother whose wife witnessed the will is void. See http://www.irishstatutebook.ie/1965/en/act/pub/0027/sec0082.html#zza27y1965s82. The rest of the will is still valid.

The other siblings can make an arrangement between themselves to honour the wishes of the deceased. In effect, they would be giving him part of their inheritance. It could have tax implications, so it might be worth getting professional advice.


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## Juliegaul (25 Mar 2010)

Thanks to all for your replies.  It may be possible to get agreement from the other three beneficiaries to do the right thing, and make sure my brother gets the share my father intended (however, there's one who might refuse).  My father was incapacitated which is why he didn't attend the solicitor's office to sign the will.  When it was given back to the solicitor, shouldn't he have checked that all was in order?  There still would have been time back then to get another will drawn up and signed and witnessed properly.  If so, shouldn't the solicitor have some responsibility if difficulties arise?


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## jhegarty (25 Mar 2010)

Was there a previous will ?


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## Padraigb (25 Mar 2010)

Juliegaul said:


> ...  When it was given back to the solicitor, shouldn't he have checked that all was in order? ...



I would have thought so, but I don't think it is something to be taken for granted: it depends on what arrangement was made with the solicitor.

In any event, can the solicitor be expected to know the identities of beneficiaries' spouses?


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## Padraigb (25 Mar 2010)

Juliegaul, I am a little concerned that you think that one sibling might refuse to participate in a family arrangement, and how you might handle it.

As executor, you have a very clear duty to deal with the will as the law provides. In your own interest, you need to keep an eye on that. Any wish you have to bring about a different outcome must be legally subordinate to that. Remember, also, that any family decision that is made is not a democratic one: if one sibling holds out, you cannot do anything legally to force him or her to comply.

Family relationships are a minefield, and I have enough sense not to make any comment on that.

I wish you luck with your difficult task.


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## ramble (25 Mar 2010)

The solicitor was, on the face of it negligent in not spelling out clear instructions for execution of the will and not checking due exection when it was returned to him for safekeeping.  He would be liable to your brother for the amount of the lost inheritance.

It may be worth your brother's while consulting with another solicitor who can go through the position in detail before deciding what to do next.  It is not nice to have to sue someone but remember all solicitors have insurance.

This highlights a major problem with solicitors and wills.  The solicitor probably charged your father very little for the will and may have even done it for free.  There is a belief among the general public that it is a trivial matter and therefore not worth paying very much for.  As a result solictors have no incentive to set up quality control systems for wills or to specialise in will drafting and cases like this are the result.


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## Juliegaul (25 Mar 2010)

Thanks all for your replies. Why I feel the solicitor was negligent is that he knows my brother and his wife, and should have spotted that my brother's wife had witnessed the will. He was in fact given the will for safekeeping months before my father died, and was asked to check it had been executed properly. The problem only arises if one or more of my siblings refuses to acknowledge the error, and refuses to gift (prob CGT problem here) to my other brother the share. I also would have thought that there should be some recourse in law, like going before a judge and asking him/her to rule on the matter. And of course, even if I can get everyone to agree to hand over the appropriate amount to my brother, he is liable I think for CGT?


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## Gervan (25 Mar 2010)

Surely if the will is invalid, the estate is divided among the siblings anyway?


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## mathepac (25 Mar 2010)

Based on post 5 above the will is valid; one beneficiary, whose spouse acted as witness, loses out.


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## Juliegaul (25 Mar 2010)

Thanks for your post.  The will is not invalid.  The bequest to one of the four children is.  Which means the other three take one third of the estate as opposed to one quarter.  If all three agreed, my understanding is that they can gift to the fourth brother the share he should have had, but as it is a gift he is liable to pay Capital Gains Tax.  Really sucks.  Just wish it didn't have to be like this.  I feel a rift will form in the family because one of the three is refusing to go along with the rest of us and give our brother what should have been his rightful share.  I've no problem working out what my quarter share is, and gifting the excess to my brother.  Now I wish I had never gone to the trouble of drawing up a will for my Dad.  And i feel angry towards the solicitor who know the whole family and who should have spotted straight away that a beneficiary's spouse had witnessed.  There would have been time to do up a new will, as it was months later thaat Dad passed away, and was capable up to the time of his death of signing a will, AND knowing what he was doing.


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## mathepac (25 Mar 2010)

Juliegaul said:


> ...  but as it is a gift he is liable to pay Capital Gains Tax.  Really sucks. ...


I believe it is more likely to be inheritance tax / gift tax or Capital Acquisitions Tax, CAT, if the threshold for gifts between siblings is exceeded, currently *Group B:* €52,121. 

More info here - http://www.revenue.ie/en/tax/cat/leaflets/cat2.html


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## mf1 (26 Mar 2010)

When faced with a problem like this, the first thing to do is to try and work out the best possible solution. Once you have the best possible solution, work out the consequences and then work out responsibility. 

People really don't take wills seriously - there is a peculiar view amongst the public that they are entirely routine, dead simple, should be for free etc.,etc Bizarrely however when it all hits the fan, the public go into overdrive about responsibility , blame and compo. 

Without knowing all the facts, it is not possible to focus entirely on blaming the solicitor. Most solicitors prefer to witness the will - precisely for the reasons outlined above. Most solicitors would prefer to attend personally on incapacitated persons but who is to pay for this service? A lot of  clients do not want to pay. 

So, bring this one back to the family. I would discreetly  advise the family to overlook the witnessing and carry out the fathers wishes. Revenue will not make an issue of it unless it is brought to their attention.  The Probate Office may or may not make an issue of it . And if one family member will not carry out the father's wishes , then that will be on the basis of "sod the beneficiary"  who loses out - let them sue the solicitor for negligence. A claim that is not bound to succeed. 

You can sort out most messes with a degree of co-operation. Its when people get grubby that it all goes astray. 

"its not for me, its for my children" ! Nuts to that is what I say, its for you. 

mf


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## Mel (26 Mar 2010)

mf1 said:


> People really don't take wills seriously - there is a peculiar view amongst the public that they are entirely routine, dead simple, should be for free etc.,etc Bizarrely however when it all hits the fan, the public go into overdrive about responsibility , blame and compo.


 
In this case it's stated above that the client requested for the will to be checked for validity. 

Juliegaul said: "he knows my brother and his wife, and should have spotted that my brother's wife had witnessed the will. He was in fact given the will for safekeeping months before my father died, and was asked to check it had been executed properly. "

How in that case would the solicitor not be in some way negligent? 

I have found that solicitors are less than serious about wills also, having had one prepared myself a couple of years back. On the return visit to sign the 'prepared' will, I had to hand it back for correction of names, dates, addresses, etc. Shoddy attention to detail to be honest.


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## Padraigb (26 Mar 2010)

mf sees things from a solicitor's point of view; I see things from a lay person's perspective.

I do not see enough in what Juliegaul said here to come to the conclusion that the solicitor was asked or instructed to check the execution of the will -- or, indeed, to come to an opposite conclusion. I suspect that it would be difficult to prove professional negligence, and that going down that road would be troublesome, expensive, and quite possibly unproductive.


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## Towger (26 Mar 2010)

Mel said:


> I have found that solicitors are less than serious about wills also, having had one prepared myself a couple of years back. On the return visit to sign the 'prepared' will, I had to hand it back for correction of names, dates, addresses, etc. Shoddy attention to detail to be honest.


 
I have see the exactly the same, took ages (with reminders) for the solicitor to write/type up the will. Only after it was signed and brought home and read through, was it realised that there were numerous mistakes, including leaving out a whole section a for one beneficiary (youngest son), who was not amused at all!


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## Mel (26 Mar 2010)

Padraigb said:


> mf sees things from a solicitor's point of view; I see things from a lay person's perspective.
> 
> I do not see enough in what Juliegaul said here to come to the conclusion that the solicitor was asked or instructed to check the execution of the will -- or, indeed, to come to an opposite conclusion. I suspect that it would be difficult to prove professional negligence, and that going down that road would be troublesome, expensive, and quite possibly unproductive.


 
I found what she said quite level - she didn't come on slating a solicitor, and she has stated what was asked of them. Obviously a conclusion couldn't be drawn from the brief outline here. The value of the trouble and expense would be for the client to decide, and maybe the productive outcome would be recovery of additional CGT costs etc?


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## Juliegaul (26 Mar 2010)

Thanks to everyone for their posts.  Comments are most appreciated.  Obviously I would prefer that everyone sat done and said let's just do what Dad obviously wanted.  My only hope is that when I sit them all down, three of us can persuade the one who wants to hold out.  Research suggests that there is no recourse to the court, and that a Deed of Family Arrangement might be the best way to go.  I don't understand the functions of the Probate Office.  Do they issue the probate with some sort of cautionary addendum pointing out that the gift to Brother No. 1 is invalid?  Do they seek evidence of compliance with the Will?  I'm not litigious and don't agree with the "sue the b**stard" line of thinking.  I would hope that the solicitor would complete the matter (he's also instructed re sale of house which is the only asset) and compensate Brother No. 1 for the loss for tax.  Hopefully, common sense and decency will prevail.


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## mf1 (26 Mar 2010)

Why does one person "want to hold out"?

Is it just "because I can"?  Or because the solicitor can be sued - even though there is no guarantee of a successful outcome?

mf


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## Juliegaul (26 Mar 2010)

Thanks MF1 for your post.  The one who is likely to hold out (I'll call him Brother No. 3) is doing so because he will get one third as opposed to one quarter share.  Sadly, this can sometimes happen in some families whereas other families will all pull together.  Brother No. 3 is unemployed and likely to remain so, and an extra 50k in his bank account must seem quite attractive to him, and he's not mature enough to realise that taking this attitude will cause a rift between him and the rest of us.  As I said before, I don't want to sue the solicitor.  He's a decent enough guy who does not rip people off.  I'm told that solicitors have to go on courses every year to make sure their skills and knowledge of the law is up to date.  Obviously this guy skipped the Wills course, because he should have spotted the error.  And in answer to other people's posts, he didn't call to the house because my father didn't want to see anyone other than family after his surgery, etc.  The will was properly drafted.  It was the witness being a spouse of the beneficiary that is causing all this difficulty.
Thanks to everyone for their posts.


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