It is hard enough to lose a parent, not to mind an additional disappointment one may have when they learn that they may not have been provided for in a will as they had hoped.
There is a glimmer of hope open to those who are disappointed in this way. An application can be brought asking the Court to make provisions for you out of your deceased parent’s estate. However, this is not an easy Application to make and it will affect the other persons who have inherited under your parent’s will.
The Application you can bring is called a Section 117 Application. In order for this Application to be successful the Judge has to find that your parent failed in their duty to make proper provision for you, in accordance with their means. Should the Judge find that your parent failed in their duty, then the Judge may order that provision be made for you out of your parent’s estate.
When considering whether your parent had fulfilled their duty to you, the Court will not only look at what was provided for you in the will, but also what you received during your lifetime. The Judge will have to consider your parent’s means, your financial position and your prospects in life. Should your parent have provided you with an expensive education for example, then the Judge may well find that your parent’s obligations to you are discharged.
The Judge will consider not only your position and prospects in life, but also that of your siblings. The Judge will take your sibling’s ages and needs into consideration. Should you have a sibling with a disability then this will have to be taken into consideration before a Judge provides for you out of the estate. The Judge will also have to consider any surviving spouse of your deceased parent.
Should you bring this Application, and it is successful, then a Judge will order that provision be made for you out of your parent’s estate. This will have a knock on effect for others, who were set to inherit under your parent’s will, as they will now receive less. Should your deceased parent have a surviving spouse, then they will be entitled to what is known as a Legal Right Share. If your deceased parent had children, their spouse is entitled to 1/3 of the estate (presuming it has not been waived). If your deceased parent had no children, their spouse is entitled to 1/2 of the estate (presuming it has not been waived).This Legal Right Share cannot be affected by the bringing of a successful Section 117 Application.
If you are successful with your Application, then your legal costs should be paid for out of your parent’s estate.
If you are thinking about making this Application, you must act fast. You have 6 months from the date the Grant of Probate is extracted to bring this Application and this time limit will not be extend.
Contact us at Cantillons Solicitors +353 (0)21 -4275673 or [email protected] if you would like more information.
* In contentious business, a solicitor may not calculate fees or other charges as a percentage of any award or settlement.