Should courts be able to rewrite your will?

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.