Dear Miriam,

I married a lovely farmer three years ago and moved into the family farm and in with his elderly mother, who my husband has cared for since his father died. The farm (land and yard) has been signed over to my husband a few years ago but because his mother is still living in the family home, which is located within the farm yard, it is willed to my husband on her death.

My query – what rights do I have if my husband dies before his mother?

My husband is in great health but with so many accidents happening, I worry about my future in our home if something happened to him. Will my husband’s siblings (none of them work or live on the farm) have more rights over the family home than I do? Can my mother-in-law change her will to change the beneficiary to another child if something were to happen to my husband? What should we do to sort this issue out before, God forbid, I would have to deal with this issue in my husband’s absence?

The option of changing the will to add me as a beneficiary is probably the most obvious, but due to my mother-in-law’s age and health, is not possible at this time.

I’m sure I am not the only person in this situation in Ireland as it is well known that parents retain ownership of the family home until their death.

Worried Reader

Dear Worried Reader,

The first thing I would say is that while it’s important to discuss these issues, your husband is in good health and hopefully will enjoy a long, happy life. It is easy to get carried away by anxious thoughts, but just try to ground yourself in the here and now.

I have discussed your query with Aisling Meehan, an agricultural solicitor and tax consultant (www.agriculturalsolicitors.ie). The first point that Aisling highlights regards your statement that parents retain ownership of the family home until their death. Aisling says this is not always the norm and it is often more tax efficient to transfer the home with the farm etc, with the parent retaining a right of residence. Perhaps this is one option that could be explored with your husband and mother-in-law with the help of your solicitor?

As to what rights you would have regarding the farmhouse in the worst-case scenario (your husband dying before your mother-in-law): normally where a beneficiary (ie your husband) predeceases the testator (ie person making the will, your mother-in-law), the gift lapses and falls into the residue of the estate. Normally a will provides that the residue is divided up amongst the surviving children equally, but, of course, she could make the decision to will it to you too.

You don’t mention if you have children, but it is worth noting that there is an exception contained in Section 98 of the Succession Act. This essentially provides that where a child predeceases a testator leaving “issue” (ie children both marital and non-marital, adopted children and their lineal descendants), and such “issue” are living at the time of the death of the testator, the gift shall not lapse, but shall take effect as if the death of that person happened immediately after the death of the testator, unless a contrary intention appears from the will.

So in simple terms, if your husband predeceased your mother-in-law leaving grandchildren, the benefit that would have been received by your husband is preserved and will pass through your husband’s estate. Thus, if your husband has made a will leaving all his estate to you, such benefit would be preserved and would pass to you. However, if your mother-in-law had not made a will, the house could go automatically to the grandchildren.

You mention that it is not possible for the will to be changed to include you as a beneficiary at this time. It is important, therefore, to discuss your husband’s own will with him and the provision made for you in the event of an untimely death, ie that the farm and yard would go to you, and perhaps a line that whatever interest he would have had in the family home be left to you.

Talk honestly to your husband about your concerns and seek legal advice as to the best options so that all parties feel reassured and taken care of. CL