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PodCast script Inheritance and dis-inheritance

1.                  Voiceover: Welcome to B.P.O’Reilly & Company Solicitors Legal Podcast on Survivors’ rights in the winding up of a family estate. In the chair is Ruraidh Conlon O’Reilly.

2.                  Today I want to talk about family inheritance and what’s involved when a parent dies. And of course it’s very traumatic and terribly sad. And for most children the last thought they would have would be “money” in the immediate face of family bereavement but after time, they must be practical and ask what arrangements have been put in place. With me is Brian O’Reilly Senior Partner with B.P.O’Reilly & Co., Solicitors & Notaries Dublin who has 35 years experience in legal practice. Brian is also LiveOnAir Listeners’ Legal Advisor on LateNiteLive with Declan Carty on NewsTalk Radio. Brian Hello. (BOR: “Hello Ruraidh”)Can you tell me please how best to go about deciding the entitlements in an estate? 

                  It depends on 2 things, Firstly when a parent dies is there still a surviving spouse/parent? And secondly is there a will?

3.                  Say the mother survives and 2 children and there is no will.

                  Then the estate is divided 2/3rd to the mother and 1/3rd divided equally between the 2 children

4.                  So it’s 1/3rd divided between the children no matter how many there are?

                  That’s right and children incidentally can be of any age – 9 to 90.

5.                  What if both parents are dead and there’s no Will?

                  The entire Estate is divided equally between all of the children.

6.                  What if there is a Will?

                  Then the provisions of the Will dictate who gets what subject to 2 very important rules under the Succession Act 1965

7.                  What are these?

                  The legal right share of any surviving spouse – the wife in the example we’re working on here – if there are children she’s entitled to at least 1/3rd and if there are no children at least ½ no matter what the Will says.

8.                  So that’s guaranteed to her regardless.

                  That’s right but regarding the childrens’ rights that’s less clear at least in terms of specific entitlement.

9.                  Well is it possible for a parent to disinherit or unequally treat a child?

                  Yes but the law can step in with protection under Section 117 of the Succession Act 1965. This section provides that if the court feels that a parent has failed in his or her moral obligation to a child or children then effectively the judge can alter the effect of the will to give a child such legacy “as a prudent and just parent shall provide”

10.              Is that difficult to prove

                  It can be because the Will is taken by the court to be the wishes of the dead parent and it’s up to say a disfavoured child to prove the parent was morally wrong in giving the gifts they did in the Will. And the court can take things into account like how well the disfavoured child has done in life so far and how the others are doing, what resources were put into the disfavoured child’s education or setting him up (buying a house or business etc). It’s not a precise mathematical process and the courts are notoriously slow to interfere with the wishes of the dead  parent (mainly because they aren’t around any more to explain what they had in mind).

11.              So what should a child do if they think they’ve been disfavoured in a will?

                  Thread carefully. After a death emotions are very high and an aggressive approach will be responded to with aggression and resentment. This is how family feuds start and last for a generation, destroying lives and embittering relationships. Get sound legal advice in private without a hint of your thoughts to the others until you’re sure of your intentions. Then if you intend to press your claim talk to your siblings in a delicate way and tease out their views. Also talk to your solicitor about resolving the issue without litigation (mediation etc) so as to avoid an expensive and emotionally damaging court case.

12.              Brian O’Reilly, Thank you.

      Thank You for talking to me.

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