Parents should sit down with their children and discuss their wills so as to avoid family ruptures that can persist through the generations, according to one of the founders of a new legal group on probate law.
Vinóg Faughnan SC said the experience of Irish barristers involved in the area of probate law is that sitting down with your children is the most important step that can be taken in order to ensure families don't end up in the courts.
He was speaking at the launch last week of the Probate Bar Association, of which he is the first president.
Among the aims of the new association is to promote awareness in the public about the importance of making a will and trying to avoid disputes after the death of a person leaving an estate.
“Not every family is the Waltons,” he said. In the event of disputes, families should “avoid court at all costs.”
Probate lawyers try to prevent cases going to court, and are deeply disappointed when cases actually proceed to a hearing, he said.
“One side wins, the other loses, and anything said in the witness box cannot be unsaid and is likely to lead to a further deterioration in the relationship between families and continued antipathy going forward with future generations.”
Since the Succession Act came into force in 1967, there have been significant social and demographic changes in Ireland particularly in relation to the nature of family relationships, and the make-up of families, he said. Some of those changes have been reflected in legislation and others not .
Mr Faughnan said mediation is particularly relevant to probate cases. Not only does it result in a significant saving in costs, but it was the experience of practitioners in the area there was a better chance of reconciliation between the family following a successful mediation.
“The chances of a reconciliation after a court case is unlikely. What is said in the witness box cannot be unsaid and often lays the foundation for future family disharmony.”
Mr Faughnan called for the implementation of recommendations made by the Law Reform Commission that there should be a presumption in law that when a child has reached 18 (or 23 if they are in full time education), their parents have discharged their moral duty and made proper provision for their adult children save in certain exceptions. These were where adult children had a particular need, had provided care and support to the deceased, or where the estate included an item of sentimental value.
Mr Faughnan mentioned the case of Paul Byrne, who was murdered by his estranged spouse Tanya Doyle in 2009, a week before their legal separation was to be finalised.
Doyle was convicted of her husband’s murder in 2013, but the trustees of her late husband’s pension still decided that legally she was entitled to benefit from it. The benefit would be €23,000 a year, or approximately €1 million if she lived to the age of an average woman.
A bill aimed at preventing people benefitting from homicide is currently making its way through the Oireachtas.
