I’m afraid my elderly father’s girlfriend will take over the farm

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My father is over seventy years old and he owns 100 acres and the family home. He is now retired from farming and the land is leased to a neighbour.

My mother passed away a few years ago, however, my siblings and I, three of us in total, do not live nearby as we have our own families. About three years ago, my father met a woman who lives in the local town.

Over the past 12 months she has become more and more a feature of my father’s life and I found out the last time I visited that she had moved in with him and had been living in the house for two month. I am worried about this.

I know my dad has a will that leaves the farm and house to myself and my two siblings, but could this woman claim part of it if my dad died?

Dear reader,

This scenario poses several problems:

1. What rights does this lady acquire by cohabiting with a man to whom she is not married?

Under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, this lady does not currently appear to have rights to your father’s property.

However, if they have lived together for five years or more, she may acquire rights to his property.

At the end of the relationship, she would have to apply for a property adjustment order or a remedy.

A court would determine, based on a number of factors, the size of its interest.

Couples can effectively contract outside the terms of the 2010 law.

Agreements in financial matters between cohabiting partners can only be considered valid if each party receives independent legal advice or waives the right to independent legal advice.

Such an agreement constitutes a contract and must be signed by each of the parties. It may also include a provision that the recourse regime does not apply to them.

A court may set aside or vary a cohabitant’s contract in exceptional circumstances if its performance would cause serious injustice.

2. The will

It seems likely that the will signed by your father (which you are aware of) is probably valid.

However, if your father were to remarry, any previous will would be invalid under the Succession Act 1965.

When a parent dies leaving a valid will, their legal spouse is usually entitled to one-third of the estate. When a parent dies without a will, their legal spouse is generally entitled to two-thirds of the estate.

It is wise for seniors to consult their doctor before signing a new will or other important legal document.

Such a medical report would allay fears that he lacks the mental capacity to make decisions.

3. What steps can a family take to protect their aging parents?

A Continuing Power of Attorney is a document signed by a person (the donor) who is mentally capable and is only intended to take effect if the donor becomes or becomes mentally incapable.

In this case, the agent designated by the donor can request the registration of the durable power of attorney so that he can act on behalf of the donor.

This allows people (often relatives) whom they trust to manage their assets when they can no longer do so. At the beginning of the process, a doctor must report that the person is mentally healthy.

Others are “Notice Parties” and are notified of the creation of such a document for protection. If the Donor is married, his or her spouse must be notified.

Taking control of someone’s health-related assets and decisions is a serious step and therefore requires precautions to avoid overindulging.

It is not an easy process and can take several months. If family members believe their relative is no longer mentally capable, it’s probably too late to set up a continuing power of attorney.

All this advice is given without knowing the situation of your father and his partner. Obviously, your father would get similar rights to any estate she might have.

It could well be argued that your father knows what he thinks, and provided he is sane, he has the right to do whatever he wants.

This lady may well be of benefit to your family and perhaps should be welcomed and given the opportunity to get to know you and your siblings. She is his company when you and your siblings don’t live nearby.

Karen Walsh, from a farming background, is a practicing solicitor at Walsh & Partners Solicitors, 17 South Mall, Cork, and 88 Main Street, Midleton, Co Cork, and also the author of ‘Farming and the Law’. Walsh & Partners also specializes in personal injury claims, transfer of property, estates and family law.

Email: [email protected]

The Web: www.walshandpartners.ie

  • While every effort is made to ensure the accuracy of the information in this article, Karen Walsh accepts no responsibility for errors or omissions, however caused. Readers should seek legal advice regarding their particular situation as soon as possible.
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