Posted in General Legal Tips on 22 January 2016

If you feel that proper provision has not been made for you under your parents Will, then you may be entitled to bring an action against their Estate.  
 
Section 117 of the Succession Act 1965  allows a child of a Testator to make an Application  to Court for provision to be made “where, on Application by or on behalf of a child of a Testator, the Court is of the opinion that a Testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his Will or otherwise, the Court may Order that such provision shall be made for the child out of the Estate as the Court thinks just”.   
 
Under Section 117 children, with the exception of step-children and foster children are children of the deceased for Succession Act purposes.
 
Any Order made by the Court under Section 117 however, will not affect the legal right share of the surviving spouse.
 
Time Limits for bringing an action under Section 117:
Proceedings must be brought within six months from the first taking out of representation to the deceased’s Estate.   This time limit is a strict one and cannot be extended.

We at Cantillons urge you to contact us for advice if you feel proper provision has not been made for you having regard to the strict time limits for bringing an action under Section 117.

Test Applied:
The test in deciding whether provision should be made is not whether the child is a dependant, but whether the Testator has failed in his moral duty to make proper provision.

Once the Courts accept that there has been a positive failure in a parent’s moral duty they then look at the circumstances of the Applicant child, the circumstances of any other children and any other matter which it sees fit.   The Court must be satisfied that a need exists.

When looking at the circumstances of the Applicant child to determine whether the need exists, the Court will take into account the financial circumstances of the spouse of that child.

The relevant legal principles the Courts consider in Section 117 Applications are set out in the helpful Judgement of Mr. Justice Kearns in the case of re. ABC deceased:  X.C., Y.C. and ZC –v- R.T., K.U. and J.L. as follows:-

“(a) The social policy underlying section 117 is primarily directed to protecting those children who are still of an age and situation in life where they might reasonably expect support from their parents, against the failure of parents, who are unmindful of their duties in that area.

(b) What has to be determined is whether the testator, at the time of his death, owed any moral obligation to the children, and if so, whether he has failed in that obligation.

(c) There is a high onus of proof placed on the applicant for relief under section 117, which requires the establishment of a positive failure in moral duty.

(d) Before a court can interfere, there must be clear circumstances and a positive failure in moral duty.

(e) The duty created by section 117 is not absolute.

(f) The relationship of parent and child does not itself and without regard to other circumstances, create a moral duty to leave anything by will to the child.

(g) Section 117 does not create an obligation to leave something to each child.

(h) The provision of an expensive education to a child may discharge the moral duty as may other gifts or settlements made during the lifetime of the testator.

(i) Financing a good education so as to give a child the best start in life possible and providing money, which, if properly managed, should afford a degree of financial security for the rest of one’s life, does amount to making proper provision.

(j) The duty under section 117 is not to make adequate provision but to provide proper provision in accordance with the testator’s means.

(k) A just parent may take into account not just his moral obligations to his children and to his wife, but all his moral obligations e.g. to aged and infirm parents.

(l) In dealing with section 117 applications, the position of an applicant child is not to be taken in isolation. The court’s duty is to consider the entirety of the testator’s affairs and to decide upon the application in the overall context. In other words, while the moral claim of a child may require a testator to make a particular provision for him, the moral claims of others may require such provision to be reduced or omitted altogether.

(m) Special circumstances giving rise to a moral duty may arise if a child is induced to believe that by, for example working on a farm he will ultimately become the owner of it, thereby causing him to shape his upbringing, training and life accordingly.

(n) Special needs would also include physical or mental disability.

(o) Another example of special circumstances might be a child who had a long illness or an exceptional talent which it would be morally wrong to foster.

(p) Although the court has very wide powers both as to when to make provision for an applicant child and as to the nature of such provision, such powers must not be construed as giving the court a power to make a new will for the testator.

(q) The test to be applied is not which of the alternative courses open to the testator the court itself would have adopted if confronted with the same situation but, rather, whether the decision of the testator to adopt for the course he did, of itself and without more, constituted a breach of moral duty to the plaintiff.

(r) The court must disregard the fact that parents must be presumed to know their children better that anyone else.”
 
If you feel that proper provision has not been made for you under the provisions of your parents Will, please consult us at Cantillons Solicitors, 39 South Mall, Cork, Tel 021-4275673 or info@cantillons.com for advice, keeping in mind the strict time limits for bringing such an Application.
 
*  In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

 


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