# Contesting mother's will while she is still alive



## Tadaima (22 Apr 2022)

My father and mother had a joint will leaving a farm, house and land split equally between myself and 2 siblings. They made this known to us and we were all in agreement. However, I tried to explain that they would need care in old age but it was assumed I would look after them. I explained I could not as I work long hours and have many children to educate. 

My father died first and all passed to my mother. She made a new will leaving nearly all to my 2 siblings. I was notified about this by a relation and confronted my mother about it. She said that she felt I was entitled,  had enough already and she did not like the family I had married into. I live near her and up to that point had done her shopping, cleaning etc as my siblings live away. I have children, they have none. We are all in our 50's. 

For the record, I do have assets but these are fully mortgaged and all came from hard work. My siblings have assets too but my mother does not register this as they live away. I have never received one cent from my parents (or anyone) in gifts, help or in the form of childcare.  If her assets were split between us equally there would be little CAT as the assets are worth around 1.1 m in total.  By splitting it in 2 there will be CAT for both. I have tried to explain this to my siblings to no avail in the hope they would at least change her mind to give something to my children .....but no one will listen to me. 

Up to the point of my fathers death, there were no major family rows and none after, until I pointed out we needed to discuss her care in old age. Then I was accused of wanting to put her in a home which I never even mentioned. I have walked away but feel I am letting my own children down. 

Can I contest this legally while my mother is still alive? Do I have to wait until after her death to contest it through a section 117 application? Will I fail as I have assets already? Or do I simply have to accept her decision? She is of sound mind. I do not believe there was forced undue influence but I do believe my siblings have continuously bad mouthed my in laws to her. I now have no relationship with my mother or siblings - and that hurts.


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## Johnno75 (22 Apr 2022)

You cannot contest your mother's will under Section 117 until she passes away, as a will "speaks from death".

You could however, contest your father's will under Section 117, though you'd need to check the statutory time period of limitation for bringing such an action.


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## Thirsty (22 Apr 2022)

Tadaima said:


> Can I contest this legally while my mother is still alive?


No.


Tadaima said:


> Do I have to wait until after her death to contest it through a section 117 application?


Yes


Tadaima said:


> Will I fail as I have assets already?


IANAL
Its nothing to do with your assets; a claim would be based on your parent(s) failure to provide for you as a child. I'm not sure you would succeed on those grounds.


Tadaima said:


> Or do I simply have to accept her decision?


In a nutshell, yes.


Tadaima said:


> I now have no relationship with my mother or siblings - and that hurts.


This is the heart of the issue: take a deep breath & step back.

People are more important than money. Forget the will, build relationships.


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## Tadaima (22 Apr 2022)

Thanks Johnno 75. My fathers will was fair and in good faith so I don't want to contest that. Thanks Thirsty for your honest advice. Every time I have reached out to my family, they have been unpleasant so I think I'll just keep away. I do encourage my children to visit but they find it hard listening to snide remarks about their other grandparents.


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## Gordon Gekko (22 Apr 2022)

It is very hard to “win” a Section 117 challenge.

Basically, none of us are “entitled” to anything if we’ve been fed and educated, and had our proverbial backsides wiped.


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## huskerdu (22 Apr 2022)

There is some information here on section 17 which may help you understand your chances of a successful action 








						Probate Practice - Limitation of Actions and Time Limits
					

Comprehensive free legal guide to Irish Probate Practice Law by Karl Dowling BL including Statute of Limitations, Succession Act 1965 & more.




					www.lawyer.ie


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## Brendan Burgess (22 Apr 2022)

I think your mother is entitled to dislike your in-laws if she so wishes and she is entitled to disinherit you accordingly.

You are entitled to break all contact with your mother if you so wish.

You are both adults. 

Brendan


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## noproblem (22 Apr 2022)

Who's to say who dies first? That might make it interesting.


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## Tadaima (22 Apr 2022)

Thank you all for your responses. I agree that nobody is "entitled" to inheritance and hope I did not give the impression I thought otherwise. My issue is more, as a parent, I find it difficult to comprehend how one could be so extreme in their different treatment of their (aged) offspring, to the point I wondered was it legal.  Anyway, I agree it is her choice so nothing I can do about it. Yes, we are at an age and condition where any of us siblings could die before my mother. Their spouses will get it then.


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## Johnno75 (22 Apr 2022)

Whilst the children are absolutely not “entitled” under law to be specifically included in their parent’s will, the law under Section 117 does entitle a child of a parent testator to bring a claim against the estate where the child claims that the deceased parent “failed in their moral duty towards the child”. 

The OP may well have a claim under the law against either parent (once deceased) if the OP has been or ends up being excluded from the will(s). 

I would advise the OP to seek legal advice on this from a Solicitor as it sounds to me that there may well end up being an arguable claim against the mother’s estate, once the mother passes.


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## Johnno75 (22 Apr 2022)

Tadaima said:


> Anyway, I agree it is her choice so nothing I can do about it.


Not so. Whilst it’s her choice, there may well be grounds for a claim if you’re being unfairly excluded. Seek legal advice.


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## Clamball (23 Apr 2022)

It must be absolutely horrific for you to know your mother has expressed a preference for your two siblings over you. 

 I find that families can often make judgements on children on their perceived success in life.  One may be married with healthy happy children, a busy business and the other might be a sponge, forever borrowing from the family, living in rented housing, drifting from job to job, and the parents feel sorry for the second sibling and leave the bulk to them.  So unfair looking at it from the outside, but the parents want both to be equal and ignore the hard graft of the first sibling. 

Unless you can prove you were not provided for as a child you I doubt if a legal claim would succeed, but legal advice would be the most prudent way to go.  It would be typical of solicitors to advise parents not to leave a child out of a will completely.  Asking you mother to leave something to her grandchildren has different thresholds for CAT so it may not redress the balance.

Otherwise it is all down your relationship with your family and your mother and siblings.  How you will manage this is up to you, and what you want that to look like for the rest of your mother’s life.


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## Sue Ellen (23 Apr 2022)

Tadaima said:


> I live near her and up to that point had done her shopping, cleaning etc as my siblings live away.





Tadaima said:


> I now have no relationship with my mother or siblings - and that hurts.



As a matter of interest who looks after your mother now in light of the fact that your siblings live away?


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## Tadaima (23 Apr 2022)

Sue Ellen said:


> As a matter of interest who looks after your mother now in light of the fact that your siblings live away?


She is paying a local person and since I stepped back one of siblings does visit more often.


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## Tadaima (23 Apr 2022)

Clamball.....It is horrific. Mostly because my siblings have decided to put money above a relationship with me and my children. I can deal with my mother judging  me on the actions of others but I cannot believe my siblings doing it to the point of manipulating the situation in their favour. You have it spot on by the way. I am the worker. In fairness one of my siblings does work hard too but the other has drifted on the goodwill of others and has regularly lived off me in the past.


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## jpd (23 Apr 2022)

Unfortunately, you can choose your friends but not your family


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## DirectDevil (23 Apr 2022)

A potential beneficiary has no basic right to know what is in a will while the testatrix is still alive.
You are only entitled to know what is in a will once the testatrix has died and it has been admitted to probate.

Remember, strange though it might sound, that OP's mother is free to change her will at any time.
She has no obligation to tell any potential beneficiary that she has done so.
The will being submitted to probate - as the last will and testament - might not be the current one !

I take it that mother's will was executed by a solicitor. If so, that should be legally sound.
If the will was not executed by a solicitor you need to pay careful attention to the issue of witnessing if this was a D.I.Y. job aided and abetted by the other putative beneficiaries.

A *witness* to a will is not entitled to benefit from that will - Succession Act 1965( S. 82).  
I read that section to exclude also the spouse of such a witness from inheritance under the will. 
Link https://www.irishstatutebook.ie/eli/1965/act/27/section/82/enacted/en/html#sec82

A beneficiary can also be an* executor*. 
So, if one of OP's siblings is an executor that would be in order but you need to keep an eye on what they do when the will is being submitted to probate. You are not entitled to a copy of the will until a Grant of Probate has actually issued. So, if your mother dies, you might be well advised to consult a solicitor promptly to protect your rights and that might include having to lodge a caveat with the Probate Office. 

Finally, I would never again discuss the contents of your mother's will with her. 
This avoids spurious accusations of undue influence.


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## Brendan Burgess (23 Apr 2022)

DirectDevil said:


> Finally, I would never again discuss the contents of your mother's will with her.
> This avoids spurious accusations of undue influence.



Really good advice. Unless all three siblings are present. 

Brendan


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## Tadaima (23 Apr 2022)

One of the siblings is executor. My mother told me herself that I am not inheriting because I have my own assets (she does not understand what mortgages are) and because of my in laws so it is her choice, unfortunately for me. 

It is good to know that I should never discuss the will with her. I won't. To be honest.......I think I'll just stay removed from them all. If I try to make amends, I'll just be her carer again which is impossible with my own jobs and responsibilities and I can't do less work to care for her or my kids will have to leave college. Also, my siblings will not give up what they now see as theirs. They have time to put a fight up against me as they don't have dependents. If I'm still around after her passing, I'll probably put in a Section 117 challenge but only on legal advice.


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## elcato (25 Apr 2022)

Tadaima said:


> I think I'll just stay removed from them all. If I try to make amends, I'll just be her carer again


I wouldn't cut off all ties, just visit her when you want and on your terms.


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## AlbacoreA (25 Apr 2022)

If it were me I'd walk away or least just do what Electo suggested. Older People often get cantankerous and bitter, blackmailing with inheritance. I wouldn't put up with that.

Also once a parent needs care siblings often disappear regardless of all the talk. None will value all the sacrifices and costs incurred by the carer. If you want to make that commitment of care do it because you want to and not for any other reason.

Also expect that in the future people will invent stories to make them look good and you look bad. Regardless of what actually happened.

I've seen all the above to often.


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## Tadaima (25 Apr 2022)

Albacore A...........This has already happened in terms of stories about me to extended family living abroad. However, local people witnessed me being her carer and have taken a dim view of her treatment of me. I don't get involved in any of it on either side.


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## PebbleBeach2020 (25 Apr 2022)

Walk away would be my advice. You will drive yourself mad trying to counteract these stories and prove the truth to your mother. Let them at it.


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## Tadaima (25 Apr 2022)

Yep. That's the conclusion I've come to. I'm staying away......but sod it, I'll help if she falls etc. I just remember occasionally the fun I used to have with my siblings up to our 30's. We were all great pals until we got married. Happens to lots of families, I guess.


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