Should courts be able to re­write your will?

The Irish Mail on Sunday - - COMMENT - Mary Carr mary.carr@mailon­sun­day.ie

NOTH­ING brings out the worst in hu­man na­ture like a dis­pute over a will. Throw our unique at­tach­ment to the land into the mix and you have a per­fect storm with the power to pitch an old­est brother against his en­tire fam­ily, where only one of his five sib­lings, a sis­ter, can bring her­self to speak to him.

The rul­ing by High Court Judge De­nis McCarthy this week in the very messy in­her­i­tance row over a €3.8m es­tate might cause par­ents to won­der about their power to be­queath their as­sets freely, rather than be dic­tated to by their off­spring.

Judge McDon­ald’s find­ing that the mother ‘failed in her moral duty to make proper pro­vi­sion for the plain­tiff in her last will’, and his in­creas­ing his pal­try in­her­i­tance to farm­land worth €1.27m flies in the face of the Law Re­form Com­mis­sion’s re­cent rec­om­men­da­tion that moral obli­ga­tion be re­moved from the Suc­ces­sion Act.

In a move to re­strict the courts’ abil­ity to re­write wills, the LRC said the law should sim­ply pro­vide that a de­ceased par­ent has a duty to make ‘proper pro­vi­sion’ for a child. In other words, all par­ents owe their chil­dren is to ed­u­cate and pro­vide for them un­til they are in­de­pen­dent.

IT’S true that in this case, the plain­tiff was shab­bily treated, what­ever way you look at it. He left school at 15 to join his late fa­ther and un­cle on the farm, so no ef­fort was made to train him for any other life­style. In his ev­i­dence, he claimed his fa­ther al­ways promised that the farm would be his.

Over the years, as his two younger broth­ers started farm­ing, the fam­ily col­lec­tively got in­volved in other ven­tures; there was a fenc­ing busi­ness, they ran a prof­itable quarry dur­ing the build­ing boom, they had a haulage busi­ness, they ex­panded the farm and later scaled back, rent­ing out some land and just keep­ing cat­tle.

Af­ter his fa­ther died, the old­est son’s role de­te­ri­o­rated while his broth­ers pros­pered. By the time his mother died, he was driv­ing a hack­ney and sup­port­ing his wife and two sons.

The judge ac­cepted that he had been turfed out of the fam­ily busi­ness in 2007 by his late mother. He also found that two un­for­tu­nate feuds over land (what else?) in­volv­ing his mother drove a wedge be­tween her and her eldest son, who was re­lated to the wit­nesses for the op­pos­ing party through mar­riage.

The mother blamed him and went back on her word to look af­ter him prop­erly in her will. She left him a par­cel of land val­ued at €42,000 while one of his broth­ers was favoured with 199 acres worth €3m.

The chasm be­tween the broth­ers’ in­her­i­tances was strik­ing, said the judge. His lack of op­tions for mak­ing a com­fort­able liv­ing when the rug was pulled from un­der him was an­other fac­tor. Un­equal in­her­i­tance seems un­fair but it’s the price we pay for the free­dom to divvy up our for­tune (such as it may be) just as we like.

In coun­tries such as Colom­bia, the state forcibly di­vides a dead per­son’s as­sets equally be­tween sur­viv­ing chil­dren and while that may sound more palat­able, it also gives the state too much power.

In this coun­try, par­ents have more dis­cre­tion but do not have a com­pletely free hand. A mother’s moral duty has righted a wrong in this case but there’s a dan­ger of it be­ing ex­ploited by a spite­ful re­la­tion to ren­der our last wishes null and void.

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