Q. My father died about two years ago. His wife, my mother, passed away over a decade ago. He never remarried. His will stated that everything was to be left equally between myself and my brother. However, the solicitor tells me that, as I got a previous sizeable gift from him, I stand to get very little. The reality is that I was gifted land which was quite valuable, and my dad did help out with some of the building costs. My brother and I are not on the greatest of terms at the moment. Is there anything that can be done?
Dear Reader
The precise terms of a will can be the cause of great acrimony between families. It would therefore be important to make sure that you have a copy of the will, and that you are fully familiar with the terms it contains.
Section 63 of the Succession Act confirms that “any gift of a deceased person during his lifetime shall, subject to any contrary intention express or appearing from the circumstances of the case, be taken as being so made in or towards satisfaction of the share of such child in the estate of the deceased”.
This is known as ‘advancement’. In your case, as you received a site of value and a gift of money towards building costs, that sum should be taken into account into the distribution of the estate.
However, many people when drafting their will specifically state that Section 63 should not apply – and they desire that whatever assets they may have in their estate be split equally without any reference as to prior gifts.
When drafting the will, your father’s solicitor should have explained the position regarding advancement to him. It may be the case that your father specifically wanted advancement to come into account.
I would suggest that you contact the solicitor who drafted the will to see if there are any notes on the file in connection with the matter. If you are an executor of the will, you would be entitled to this information.
If it is clear that advancement was not waived in your father’s will, you should also bear in mind that any gift that was given to your brother should be brought into account.
If you are unsure of the position, you should consult with your own solicitor – bearing in mind that the solicitor that is acting for the estate may not be obliged or allowed to give you all the necessary information.
