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Dispute over the family farm after mother’s death

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My mother passed away more than a decade ago and her estate remains unsettled, with nothing done over this period. She was the owner of a large farm, prime land.

From many years before her death she lived at her farm with one of her sons, her other children having moved away. She ran the farm with him having access to a few fields. They did not really get along as she was under pressure to sign over the farm.

A number of years before her death, she ran into health problems that left her unable to drive and with significant mental and physical impairment. She became very isolated and increasingly dependent on my brother for transport, shopping, meals and medication.

Over time, my brother took over the running of the farm and control of her bank accounts. He had her personal papers transferred from her solicitor to his. My brother does not communicate with most of his siblings.

A few weeks after my mother’s funeral, two of us went to see the solicitor looking after her estate. He advised that our brother living on the farm was the executor, and that he was under instruction to “release no information to nobody”. We asked for a copy of her will, which he refused to provide. He continues to refuse after 10 years, so I have no idea what my mothers wishes are.

My brother and I have sent dozens of letters over the years to the solicitor and a brother lodged caveats but have had only two replies in that time. We engaged a solicitor, who was confident he would have copy of the will in 10 weeks. We paid him €20,000, which turned out to be a complete waste of money, with him then saying in 2019 it could cost between €300k-€400k to go to court. We were not prepared to risk that sort of money.

There appears no end in sight in resolving my mother’s farm, which is registered in my mother’s name as of last month. And there is no application for grant of probate, also confirmed by probate office last month.

I have no appetite to engage with another solicitor and I don’t see why I should have to risk any more of my own hard-earned money on this problem that is not of my making. My thoughts are now that I go public and to the State legal regulatory bodies. I would be most grateful for your thoughts, understanding that they will be general in nature.

Mr D.P.

I’d like to be able to say that this sad tale of family tension is a vary rare outlier in Ireland, but unfortunately it is not, even if some of the details can be more or less miserable depending on the case. There are properties lying derelict and land lying fallow across the State because of intragenerational dispute or lack of clarity in succession.

The bottom line here is quite clear: your mother is dead for more than 10 years, there was a will (there may be more that you are unaware of), your brother who lived with your mother was the executor and nothing has happened in terms of formalising the position.

Behind that quite clearly lies a deep well of resistance and resentment.

The situation in Ireland in regard to wills is that there is no automatic right to view a will until probate has been granted. Once that happens, the will is a public document and is available to anyone on payment of a fee.

Before that point, access to the will is entirely at the discretion of the executor to the estate, in this case your brother. Even the solicitor assisting with the process has his or her hands tied: they cannot disclose the contents of a will without the authorisation of the executor.

Having said that, an executor denying immediate family – ie siblings or children – access to a parent, grandparent or sibling’s will without good reason would in my experience be cause for concern.

It is also normal for the executor, or a solicitor acting for an executor, to notify beneficiaries under a will that they will benefit from the estate, although there is no legal obligation for them to do so until all the legal and financial work required to secure probate has been completed.

The executor does have wide-ranging powers in relation to their work but these can be open to challenge.

First up, there is the concept of the “executor’s year”. This essentially means that a legal challenge will not be entertained in the first year after the death of the person whose will is at the centre of any dispute. This is to allow the executor reasonable time to pull together the financial assets of the estate, settle any outstanding debts and complete the paperwork necessary for securing probate.

Clearly in this case we are an awful long way beyond this point.

Another factor to consider is whether the will needs to go to probate. Most wills do, and where there is land or property involved in the estate, they always do.

However, there is a “but”. The exception is when the land or property is held in joint names and therefore passes to the surviving owner by way of survivorship. In this case, the asset is not part of the estate at all.

From everything you say in your letter – and I have edited that down substantially – this land was owned and actively farmed by your mother. Although your brother lived with her, the relationship was not always harmonious and there was no question of her putting the property into joint names.

The uncertainty arises in relation to what may or may not have happened between the time your mother fell ill and her death, during which she would clearly have become more dependent than heretofore. Against this, your very recent check has found that the land remains in your mother’s name.

I understand your exasperation over how events have played out over recent years, your reluctance to venture back into the world of law after your previous experience and your concern over potential cost.

But this is clearly a reasonably substantial estate. Given its size and location, the land alone would be worth in excess of €1 million according to figures available from the Society of Chartered Surveyors and Teagasc.

Given the reluctance of your brother to engage in any meaningful way and the lack of demonstrable action over the past decade or more, I have to tell you that the only way you are going to get resolution here is by engaging a solicitor and commencing legal action if necessary after notifying your brother by final solicitor’s letter that this will be the course of action taken.

You could try complaining to the Law Society but I am fairly confident they would rule that the blame for any delay does not lie with the solicitor but the client.

There are several issues here in legal terms. First, is there a will? I am assuming there is because your brother’s solicitor said he was executor. Second, when was it drawn up? If it was drawn up after your mother fell ill, was she legally competent to draw up a will at that point, or is it invalid? If so, although that is something that would need to be decided by a court, the most recent will drawn up before she fell ill would be the last valid will. Where is that?

Any legal challenge over validity will need to be filed within six months of any probate, although that appears academic for now.

Was there any transfer of land into joint names that would avoid the need for probate? From your investigations, that would seem unlikely but, if there was and the paperwork is simply sloppy, again, was your mother in a position to execute such an arrangement after she fell ill? You seem clear that it would not have happened previously.

Finally, why has no probate been taken out in the past decade or so? On this ground, you will be arguing that the executor has either been negligent or deliberately failing to carry out his duties in the role and will seek his removal by the court.

Arguing any or all of these points will require taking a case in the High Court. I can certainly understand the worry about cost. High Court costs can mount quickly. However, if you can show that the executor has not behaved reasonably in carrying out their duties, it is open to the court to award costs against the executor in a personal capacity – ie not out of the estate.

You may feel frustrated with the legal system and I would never advise anyone to take formal legal action lightly as outcomes can be uncertain and it can be expensive, but I simply do not see any alternative in this case. From what you say, and of course, this is only one side of an argument, your brother is simply acting as if the land is his without going through probate and refusing absolutely to engage either with you or the executor process he has undertaken to carry out. That last bit could be what trips him up.

The alternative is simply to walk away from the whole thing – and your actions to date would suggest you do not want to do that.

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to dominic.coyle@irishtimes.com, including a contact number. This column is a reader service and is not intended to replace professional advice

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