Q. My uncle died leaving an Irish will. He had also made a will in another country, dealing only with his assets there.<\/p>\n
A probate application by the solicitor who drafted the Irish will, made five years after the death, was refused by the Probate Office because the newer will made overseas contained wording revoking previous wills. The deceased, however, only intended to revoke previous wills made in the other country, the solicitor there later confirmed.<\/p>\n
Legal letters from the beneficiaries, seeking progress by the executor \u2013 who is also a beneficiary \u2013 have been ignored.<\/p>\n
Served with a probate citation, compelling them to proceed or step aside, the executor \u201centered an appearance\u201d to the citation, and remains the executor.<\/p>\n
We are concerned the estate may continue to drift indefinitely. My family\u2019s only real wish is to see the deceased\u2019s will completed fairly, and without delay. What can we do?<\/p>\n
[\u00a0Making a will, administering an estate, and will disputes: the costs and challengesOpens in new window<\/a>\u00a0]<\/p>\n A. Was the Irish will revoked by the newer will overseas? That\u2019s the first matter to resolve, says Caitriona Gahan, head of wills, probate and estate planning at Lavelle Partners.<\/p>\n \u201cThe Probate Office has refused to accept the Irish will on the basis that it was revoked by the will made overseas, so it\u2019s unlikely they will issue a grant [of probate], or allow the Irish will to be proved by the overseas lawyer\u2019s sworn statement, without a court order confirming the Irish will has not been revoked by the will made in another country,\u201d says Gahan.<\/p>\n An application to the High Court \u201cnon-contentious list\u201d is likely to be required to establish this, she says. However, unless the application is made by the executor of the Irish will, it may be difficult to progress matters.<\/p>\n As the executor has \u201centered an appearance\u201d to the probate citation \u2013 that is, they have responded to a court order saying they will handle the estate and they don\u2019t want to give up their role \u2013 the next step open to beneficiaries is to ask the Probate Office to order the executor to apply for the Grant of Probate within 14 days. This is called a \u201csidebar order\u201d.<\/p>\n If they don\u2019t apply in that time-frame, the Probate Office may make a further sidebar order, treating the executor as having given up their right to act, says Gahan.<\/p>\n If that happens, the next person entitled to apply for a grant can step in. Decided by High Court rules, this is usually a person entitled to share in the residue of the estate.<\/p>\n [\u00a0Will foreign-based executors make sorting our affairs when we die more difficult?Opens in new window<\/a>\u00a0]<\/p>\n If the court finds the Irish will was not revoked by the newer overseas one, the reader asks whether an application could be made to remove the executor.<\/p>\n The courts are unlikely to remove the person chosen by the deceased to administer their estate, Gahan says. Only in \u201cserious and special circumstances\u201d will they do so, such as when there is a clear conflict of interest.<\/p>\n And even then, if the executor says they will address the issues, the court may allow them to continue.<\/p>\n If no grant of probate is issued to the executor, or the executor is removed, beneficiaries who wish to bring a claim against the estate will have to apply to the court under section 27 (4) of the Succession Act 1965 for a special administrator to be appointed. This is usually an independent person, says Gahan.<\/p>\n Then, there\u2019s timing to think about. Where there is a will, the Succession Act allows six years, starting from the date of the death, to claim entitlement. After six years, a beneficiary\u2019s claim to a share in the estate will usually be out of time, meaning they can no longer enforce that entitlement through the courts.<\/p>\n If an independent administrator is appointed, they only have the legal authority to manage and distribute the estate after the court issues the grant of administration.<\/p>\n There is case law to support the position in an administration that the six-year limit runs from the date of death, not from the date of the appointment of the administrator, says Gahan.<\/p>\n So, it\u2019s possible that if one or more of the beneficiaries brings a claim against the estate, that is, they take legal action to demand a share of the deceased person\u2019s estate, a defence may be raised that the claim is brought outside the permitted six-year window, or is \u201cstatute-barred\u201d, says Gahan.<\/p>\n [\u00a0Ask the Lawyer: \u2018My husband has died and our home is in both our names. Do I have to notify the Land Registry?\u2019Opens in new window<\/a>\u00a0]<\/p>\n \u201cIf all the beneficiaries are statute-barred, or if no beneficiary has issued court proceedings making a claim against the estate within six years, it is most likely that an independent administrator would not plead the statute and simply administer the estate.\u201d<\/p>\n [\u00a0Ask the Lawyer: \u2018I\u2019m an American, can I live in Ireland for six months of the year?\u2019Opens in new window<\/a>\u00a0]<\/p>\n