My mother died 10 years ago and my brother died four years ago. My brother was married, had no family and had his own farm. His wife is now seeking her husband’s share of my mother’s property.

My mother died intestate and had dementia. Can a daughter-in-law claim? She is not a blood relative and has no children. I have checked every place I can think of and there is nothing to indicate anywhere that she can. If there were children, they would be entitled to their mother’s share or their father’s share if we were siblings, but the daughter-in-law is not mentioned.

My brother never filed any type of claim before transferring his mother’s property. Perhaps in life he would have been a future beneficiary. In the inheritance law, 50 percent of the husband’s inheritance is mentioned.

lord northwest

Oh, this is a disaster. And at first glance it appears to be a textbook example of why “informal” agreements made within families over issues of inheritance, land, property, etc., are so dangerous. It’s also a wake-up call for the hundreds of thousands of adults across the state who have never made a will.

Intestacy is a legal concept with very clearly defined rules about what should happen, none of which appears to have happened in this case. I have no idea how much land is at stake or what it’s worth, but it seems to me that your sister-in-law could very well have a stable case simply because everyone decided to let the dogs sleep.

In the normal course of events, a daughter-in-law would have no automatic right to an estate, either because she was left out of the will or, as in this case, when someone dies without a will.

As you say, she is not a blood relative, which is reflected in the fact that anything her mother would have left her in a will would have been subject to the lowest of the three tax-free thresholds available: currently €20,000, but even more modest €15,075 when your mother died a decade ago. Whether or not she had children would also be irrelevant unless there was a will leaving something to her father who had predeceased her mother, none of which happened in this case.

So, if things had been done as they should have been, your sister-in-law would have no possible claim against your mother-in-law’s estate. But since everyone decided, for some reason, to bury their heads in the sand and do nothing to regularize your mother’s affairs, she might have a right now.

When someone dies intestate, a close relative will usually apply to the court for a grant of administration – the legal power to manage the affairs of the person who has not left a will, or where a will is invalid. Court rules state that “persons having a beneficial interest in the estate of the deceased shall be entitled to a grant of administration in the following order of priority.”

The first on the list are the spouse or common-law partner, the child, the children of a child who died before the intestate person, a parent, a sibling, the children of previously deceased siblings, nephews and nieces, grandparents, uncles and aunts, great-grandparents. and then “other closest relatives (whether full blood or mixed blood).” Basically, anyone who may have a claim on the estate under the Succession Act.

If more than one person from the same group applies, the court will determine who should have responsibility. If no one files, the State can name someone, or a creditor of the estate (someone your mother owes money to) can request letters of administration or have a lawyer do so on your behalf.

Since you can do it, there is no role there for a father-in-law, that is, someone who has no blood relationship with your mother.

However, there is also no provision in Irish law that allows the who process to simply be ignored, which is what appears to have happened here. Before the Succession Act, as I understand it, although it was long before my time, it was quite common practice for land to simply pass to the firstborn, but that dates back to before 1963 and certainly does not apply now.

I suspect, although I obviously can’t be sure, that you and your brother decided between yourselves that you would have control of your mother’s land without going through any official process.

That might have worked if his mother had left a will leaving him the land, but in the absence of that will, the law determines how her assets will be passed on. And in this case, where it appears there were two children – you and your now deceased brother – the estate should have been divided equally between you. You can’t choose otherwise.

Could that have happened and your dead brother gave you back his share? Sure, although that probably would have had tax implications for you.

Could he have formally waived his claim? I haven’t heard of that happening in intestacy cases, but I don’t see any reason why it wouldn’t be possible.

But the key in any of those scenarios is that there would be a formal paper trail available.

If so, your sister-in-law will get nowhere with her claim. However, if you and your brother simply ignored the Succession Act and the requirements for managing your mother’s estate in the six years before your brother’s death, she may well find a lawyer prepared to argue that she has a due claim. to an unreasonable delay in the report of you and/or your brother.

Her argument, presumably, would be that if the estate had been administered within a reasonable period of time, her husband would have inherited half of his mother’s estate and that could pass to her on her death, assuming her will, if she has one, , makes it its general beneficiary. Even if he dies intestate, in a situation where there are no children, she would be the sole beneficiary of his estate.

The 50 percent rule you refer to in inheritance law is, I assume, legal participation. That means your sister-in-law is entitled to at least half of her husband’s estate. In reality, that only applies when there is a will that leaves you less than that share. In case of intestacy, she will get at least two-thirds of his estate even if she has children. Anyway, it’s not relevant to this case.

And, just to clear up loose ends, your mother’s dementia is also irrelevant. Either you made a will before you lost the capacity to do so or your estate is considered intestate, as is the case here.

So, like I said at the beginning, it’s complicated. Unnecessarily, really. You and/or your brother could have sorted out your mother’s estate years ago and then made whatever arrangement you chose between yourselves, subject to the tax law. But if your argument is that neither of them did anything for a decade about their mother’s affairs but that regardless of that, your sister-in-law should have no rights, I suspect you might find that open to question.

And that could prove expensive, regardless of who wins in the end.

In reality, it is about time that people in Ireland realized that you cannot simply ignore the law when it comes to death and the passing of family property. And your situation is a good example of why.

Send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to [email protected] with a contact telephone number. This column is a service to the reader and is not intended to replace professional advice.