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Buachaill, Barrister
Category: Republic of Ireland Law
Satisfied Customers: 10110
Experience:  Barrister 17 years experience
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My Father died last week , Although he and my mother separated

Customer Question

My Father died last week , Although he and my mother separated over 20 years ago they never divorced.
He lived and shared a house in joint names with another woman.
He did not leave a will.
Does this woman have the right to appoint herself as executor and claim all his property ignoring the rights of my mother myself and my two brothers
Who is the rightful next of kin?
Submitted: 2 years ago.
Category: Republic of Ireland Law
Expert:  Aston Lawyer replied 2 years ago.
Hello and thanks for using Just Answer.
My name is ***** ***** am happy to assist you with your enquiry.
I am sorry to hear of your position.
As your Father did not leave a Will, his Estate is administered in accordance with the strict Intestacy Rules.
As such, as your parents never divorced, your Mother is classed as his next of kin and is therefore the only person who is entitled to apply to become his Administrator. His partner has no such legal right whatsoever- there is no legal recognition of a "legal partner".
Your Mother is also classed as his sole beneficiary and is therefore entitled to the whole of his Estate.
On a side point, please note that your Father's partner may be entitled to make a claim against your Father's Estate. Under the Inheritance (Provision for Family and Dependents) Act, a party who has been living with a deceased for 2 years before their death has such a claim if she has not been left with adequate financial provision, taking into account all the circumstances. As their property was in joint names, provided they held it as Joint tenants, the property will pass automatically to her.
I am not sure how much other money etc your Father left, and I can't of course say whether she has a valid claim, but thought I should mention this.
Depending on how matters go, your Mother may be well advised to speak to a local Wills/Probate Solicitor who will be able to advise her more fully.
I hope this assists you and answers your question.
Kind Regards
Customer: replied 2 years ago.

On the land registry It states that

"the devolution of the property is subject to the provisions of part11 of the succession act 1965 in Eire

Did my father have the right to enter into a transaction giving his half of the house away without my mothers permission ?

Is his girlfriend acting outside the law assuming this role against the will of my mother and the three children?

Does my mother have the right to demand that she relinquish this role?

My mother had a reciprocal agreement that in the event of her death he would receive her pension and she his. Can his girlfriend claim his pension ?

Expert:  Aston Lawyer replied 2 years ago.
Hi Derek,
I am sorry- I am an English Solicitor and believed you were in the UK.
I am therefore unable to assist you. I will therefore opt out and allow a fellow expert to help you.
Kind Regards
Customer: replied 2 years ago.

Will someone be replying to my questions?

Expert:  Nicola-mod replied 2 years ago.
I have now transferred this to Spain law and hopefully one of our Experts there will be able to help.
Thank you for your patience,
Expert:  JoseMagadan replied 2 years ago.

Hi there

José M spanish solicitor

Is the propiety in Spain?

Customer: replied 2 years ago.

I am not satisfied with the response There was only a space for EU

law and i ticked that box

later the lawyer realised he had not observed that and abandoned the job I have explained that the property is in Eire i

you now ask me if the property is in spain

The property is in Eire as stated. if spanish law and irish law are the same . please answer if not then we are wasting time and money

Expert:  JoseMagadan replied 2 years ago.

Hi there,

I am sorry to be here. Eire law has nothing too suit with spanish law as me neither

Sorry for that

Just we want to help you

Thank you

Expert:  Buachaill replied 2 years ago.
1. Hello there. I will answer the Question in accordance with Republic of Ireland law. Since the passing of the 2010 Civil Partnership and Rights and Obligations of Cohabitants Act, a cohabiting partner, such as your father's girlfriend has extended rights in relation to your father's estate. However, she is not the next of kin for Succession purposes. The important point is that a cohabiting partner can now extract letters of administration to your father's estate and seek to admit the estate to probate. A cohabiting partner is now within the class of persons who can extract probate to the will. Where there is a dispute, as here, it is a question of who acts first and extracts probate first. So, if you wish to handle the probate of your father's estate, you should move to do so as soon as possible.
2. Secondly, in relation to the distribution of the estate, it is necessary for your father's cohabiting partner to make an application under section 194 of the 2010 Act for a share in your father's estate based upon the fact she has been cohabiting with him for many years and was dependent upon him. In making an order under this section the share given to the cohabiting partner cannot exceed what she would receive if she were married to your father at the date of death, which here is a two thirds share in the estate as your Dad died intestate. However, any order made cannot affect the legal right share of your mother as spouse of your father, which means your Mum will get her two thirds share in the estate of your father upon intestacy. So in practice, this usually means that up to a third of the estate is given to the cohabiting partner. In practice it means that the children of the deceased lose out as they are directly competing with the cohabiting partner. This is the weakness of the section.
Customer: replied 2 years ago.

Thank you so much for your reply

So does that mean if my fathers girlfriend has already stolen everything there is no redress . there is a property in joint names which states on the deeds under ownership that it is subject to the provisions of part 11 of the succession act 1965 I believe my father put this in place to ensure some provision for my mother

Does that not mean that his share forms part of his estate ?

Anything she has done to disinherit my mother is surely open to investigation, explanation and rectification

please advise

Expert:  Buachaill replied 2 years ago.
3. Yes, in strict point of law, your father's cohabiting partner has no share in your father's estate unless and until she makes an application under section 194 of the 2010 Civil Partnership and Rights of Cohabitants Act. So, once someone extracts letters of administration to your father's estate, a legal action can be taken in the name of the estate for the recoupment of all assets which your father's cohabiting partner might have taken. IN law, the cohabiting partner has "intermeddled" in the estate. It does not mean that there is no redress. That is a totally defeatist outlook.
4. Secondly, so far as the property in joint names is concerned, your father's half share in this property forms part of his estate. Should the estate be administered, your father's half share would therefore be two thirds owned by your mother and one third owned by you and the other children, until such times as the cohabiting partner seeks relief under section 194.
Buachaill, Barrister
Satisfied Customers: 10110
Experience: Barrister 17 years experience
Buachaill and other Republic of Ireland Law Specialists are ready to help you
Customer: replied 2 years ago.

Could my fathers cohabiting partner take control of my fathers bank accounts and other assets legaly without reference to my mother ?

could she make an application under section 194 of the 2010 civil partnership and rights of cohabitation act legally without reference to my mother ,or informing her ?

My father was pretty far gone with alzheimers during the last four years

could his girlfriend control his assets legally without reference to his next of kin ?

Expert:  Buachaill replied 2 years ago.
5. Firstly, in order to take control of any bank account in your father's name, your father's cohabiting partner would need to have extracted letters of administration to his estate. That is how authority is given to deal with your father's bank account. Otherwise, no bank will hand over the money. Obviously, if there is a joint account in joint names, the situation is different as the account would only then be continued on as before. Secondly, it is a condition of making a section 194 application that the spouse or any other persons entitled under the intestacy have to be informed of the proceedings. So no s.194 proceedings can take place without your mother knowing. Thirdly, if your father had alzheimers, then he lacked legal capacity to deal with his own affairs. If someone else wanted to deal with them, they would either have to have had a power of attorney from your father or made him a Ward of Court. So, unless, either of these things happened, no authority to deal with his affairs was given, nor was lawful.

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