Shortfall in mother’s will means legacies cannot be paid in full

Q&A: Dominic Coyle

When it comes to abatement, specific legacies trump general legacies.

When it comes to abatement, specific legacies trump general legacies.

 

My ex-husband’s mother died recently. She left the house to him. She also left €10,000 to a brother who unfortunately died 18 months ago.

The will states the €10,000 died with him but his three adult children, her grandchildren, are claiming it should be theirs. Is this correct? Does my ex have to raise €10,000 as there isn’t actually €10,000 left after funeral costs?

Also, they claim that if the surviving son (my ex) dies, the house should be split between the six grandchildren even though the house has been left to him.

Ms H.S., email

It always amazes me how families will not respect the wishes of their loved ones as outlined in their wills. There can, of course, be confusion, which certainly covers some of the issues you raise. But, if your reading of this will is correct, there is also clear disregard of the wishes of your ex-husband’s mother which is always disappointing and, within families, stressful.

As I have written recently, where specific provision is not otherwise made, it is true that a bequest left to a person who predeceases the testator – the person making the will – does automatically form part of their estate if they have children themselves.

However, you state that there is specific stated provision in the will that the financial bequest dies with this woman’s son, should he predecease her – as he did. This would be unusual but, if so, then his three adult children have no right to the money.

It will come down to the precise wording of the will. And if there is any lack of clarity, the danger is that it will come down to a legal battle that could easily cost more than the disputed sum.

In that case, it might prove sensible for your ex-husband to raise the funds and pay the money – or the balance of it – to avoid a costly legal battle. That, however, is a matter for him and his legal advisers – and he certainly would want to take legal advice, most particularly on the clarity of wording of the will.

Once we get over that hurdle, there is the second issue – there is not enough money left in the estate to meet the bequest.

This brings us to one of those lovely legal words that tend to leave people utterly flummoxed – abatement.

Abatement is a process where bequests, or legacies, are scaled down where there is insufficient resources in the estate to meet the legacies set down in the will.

So, if three people were left a sum of €10,000 each (let’s say), but there was only €20,000 left in the estate after liabilities had been met, each of the three would only get two-thirds of the amount.

But what about the house, you say?

This is where it gets further complicated. Legacies are not all alike – nor, it seems, do they have equal priority. There are “specific” legacies – such as leaving a specific identified property – and then there are what are called “general” legacies. These include “pecuniary” legacies, which is a legacy of a set sum of money.

Now, I am not a lawyer but, having done some research, I understand that, when it comes to abatement, specific legacies trump general legacies. Thus – again subject to the specific wording of the will granting your ex-husband his mother’s house – the specific property is handed over in full. If, at that point, there is insufficient money to meet all general legacies, they are “abated”.

From what you say, I gather there is only one general legacy in this case – the €10,000 left to your ex-husband’s brother. In that case, that legacy bears the brunt of any abatement.

If you are right about the legacy dying with him, any reduced amount of this legacy then passes into the residue of the estate and is handled in accordance with the dead woman’s wishes regarding her residue.

If no wishes are expressed, it is treated under the laws of intestacy, in which case – assuming this woman had only the two sons – your ex-husband would receive half of what was left of the cash and his brother’s three adult children would share equally in the other half.

But we’re not finished yet. Your ex-husband’s nephews and nieces are arguing that when he eventually dies, the house should be divided between all six grandchildren – his own three and his brother’s three adult children.

I’m not sure where they get this interpretation. If your ex-husband is alive to inherit the house, it is his. What he does with it when he dies is a matter for him. He does not even need to provide for his own children unless they are dependent on him by virtue of their young age or some other reason.

Certainly his brother’s adult children would have no claim on it unless your ex-husband specifically made such provision in his own will.

Given the complexities involved and the contention between the parties as to who is entitled to what – and the fact that I am no lawyer – it is important that your ex-husband takes legal advice so that he is clear on both his rights and his choices, and the potential costs involved, before proceeding further.

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

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