Case Study: When a child has not been provided for in a parent’s Will

Unlike in other jurisdictions where children may be entitled to a fixed share of a deceased person’s estate where they have made a Will, there is no such right to a specific portion in Ireland. However, what a disgruntled child has is right to apply to the Court under section 117 of the Succession Act 1967 (a “Section 117 Application”) for such provision as the Court thinks just in circumstances where the parent has “failed in his moral duty to make proper provision for the child in accordance with his means”.

Case Study

  • Patrick died leaving three sons – Michael, John and Thomas.
  • Patrick leaves his estate equally to his sons Michael and John.
  • Michael owns a large house and is the owner of a tech start-up which will float on the stock market next year.
  • John has a finance qualification and recently completed an MBA which his father Patrick paid for. John works for a large accountancy practice.
  • When Thomas finished school he did not go to university but worked in the family grocery business with his parents. He worked there up to his father’s death and did not receive anything under this father’s Will.

Making a Section 117 Application

A claim can only be brought where a Will has been made. Where there is no Will the Succession Act sets out the share of the children. For the most part, children making the application will be adult children, although they can be of any age. The Court considers the application from the point of view of a prudent and just parent. In deciding what provision to be made to the child the Court cannot affect anything which the surviving parent of the child receives. A vital consideration in making such an application is whether the application is made in time. A claimant has only six months from the date of the Grant of Probate to issue their proceedings. This applies even where the child is under the age of 18 or has a disability. It is therefore extremely important to bring the proceedings as soon as possible.

What the Court considers

The High Court set out in a 2003 case (In the Estate of ABC Deceased [2003] 2 IR 250) a list of items that it will consider in deciding whether further provision should be made for the child. These include:

  • whether the parent has paid for an expensive education for the child or whether they were given other gifts during their lifetime,
  • the moral obligations of the parent to his other children and spouse,
  • the totality of the deceased’s affairs and
  • whether the child has any special needs.

The Court also realises that a parent is presumed to know their children better than anyone else. The Court will look at the child’s position in life and whether they have been successful and will have to consider whether there is a positive failure in moral duty.

The costs of such applications generally come out of the estate funds and the hearings are held in camera.

What can Thomas do?

Thomas would have a good chance of succeeding with a Section 117 Application but must initiate the proceedings within 6 months of the Grant of Probate. He will issue the proceedings against the Executors of the Estate.

If you have any queries on any of the above, please contact any member of the team.