Paul Murphy | The Irish Independent – Farming Independent February 2023
I am currently thinking about making my will. My wife died 5 years ago and I have 5 children who are all reared and doing their own thing.
I have a fine size farm of about 150 acres filled with stock. One of my sons does nearly all of the work for me so I think I should leave the farmhouse, farm and everything on the farm to him. I do not want to split the farmhouse from the farm.
I will probably leave whatever else I have, mainly money in the bank to my other 4 children between them. I am worried about this as they may not be happy with my decision.
One of the neighbours told me recently that I had to be careful if I am leaving almost everything to one child as one of the other children could make a claim against my estate once I am gone. I am very worried about this and would hate to see any of the farm sold.
Is there anything I can do to avoid this?
As a starting point, you should be aware that a parent has no legal obligation to provide for their children under the terms of their will. That being said, this does mean that a child is in any way prevented from taking an action against the estate of their parent should they believe that their parent has failed to properly provide for them under the terms of their will.
A child in this context does not have to be under the age of 18 or dependent and will include any biological or adopted child of the deceased parent but will not include step-children or foster children.
In order to succeed in such an action, a child must be able to demonstrate to the court that their parent has failed in their moral duty to make proper provision for them in accordance with their means, whether by their will or otherwise.
The onus of proof in such cases is quite high and the child must be able to show that such a failure exists on the part of their parent. The child must also be able to show that they have a specific need that their parent could have satisfied by their will or otherwise but failed to do so. If the Court rules that proper provision has not been made for the child, it can make an order to the effect that provision is made for the child from the estate. As you will appreciate, this could mean that estate assets may have to be sold.
In making a decision in such a case, the court will look at various factors such as the following:
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The amount left to a surviving spouse of the deceased if applicable
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The number of the parent’s children, their ages and positions in life
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The means of the parent
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The age of the child taking the action, their means and overall prospects in life
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The nature of the relationship that existed between the parent and child
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Whether the parent has already made provision for the child
Although the possibility of a child taking a claim against your estate may be concerning to you, it is important to be aware that a court in such circumstances will be extremely conscious to give due weight to the wishes contained in the will. Case law in this area is also clear in that the power of the courts should not be construed as a power to make a new will for the deceased.
Ultimately, while there is no certain means of preventing a claim against your estate, there are many ways in which you can attempt to ensure that your wishes are respected and your estate assets protected.
I would strongly recommend that you attend with your solicitor to discuss the matter in detail with them. Your solicitor will be able to provide you with practical advice in relation to your specific circumstances. In addition, your solicitor will be able to carefully record your instructions and the rationale behind your decisions. Additional documentation may also be prepared by your solicitor to accompany your will. It is also worth considering the possibility that your solicitor may be in a position to assist you in formulating an succession plan less likely to give rise to conflict.
As an aside, I am not aware if you have by now lead your son to believe that he will be inheriting the farm and all contained on it? If so, if your son holds this belief and has actively farmed the land to his own expense/detriment, he could also be in a position to take of action against your estate, should you subsequently elect not to gift the farm to him.
Paul Murphy is a solicitor and trust and estate practitioner with MacSweeney & Company, Solicitors, 22 Eyre Square, Galway (www.macsweeneylaw.com).