Under Section 117 of the Succession Act 1965, a child who feels, that they have not been properly provided for by the estate of their late parent, may bring an application to the Court for provision out of the parents estate.
Under Section 117 of the Succession Act, if the Court is of the opinion that a parent has failed in their moral duty to make provision for that child then the court may then order such provision to be made as it thinks just. Section 117 does not create a mandatory duty or obligation on a parent to leave something to each child, hence many adult children are of the belief that there is an automatic right to a share in their parents’ estate. This is simply not the case. The Court assesses a parent’s moral duty to make proper provision for a child and in doing so considers the application from the point of view of a prudent and just parent, taking into consideration the position of each child and any other circumstances considers to be appropriate or necessary. The date for deciding whether or not a parent failed in their moral duty to make proper provision for a child is the date of death and not the date of the Will itself.
Factors which the Court will consider, in assessing whether a deceased parent, at the date of death, has failed in their moral duty to make proper provision for a child includes consideration, such as:
- The number of children the deceased has, their ages, their position in life at the time of the parent’s death.
- The means of the deceased parent
- The age financial position and prospects in life of the child making the Section 117 application
- Whether the deceased parent already made proper provision during their lifetime for the child
- Whether the child has a disability
- The amount left to any surviving spouse or the value of the legal right share, depending on the circumstances applicable in each case
Although the Court has wide powers as to when to make provision and as to what provision to be made, for an applicant child, such powers must not be construed as giving the Court the power to make a new Will for the deceased parent. Accordingly, feeling aggrieved that someone else has benefited to a much greater extent is not sufficient grounds to make a Section 117 application. The provision is not about equality or fairness between children but rather the applicant child must establish that there was a clear need for provision to be made for that particular child, greater than what was made the deceased parent, either during their lifetime or under the terms of their Will.
The time limit imposed by Section 117 is a particularly strict one. Applications must be made within 6months of first taking out the Grant of Probate in the deceased parent’s estate. Any child wishing to pursue such a course of action should contact their solicitor immediately as there is a great deal of preparation work required prior to issuing these proceedings. For further advice on the above matter please feel free to contact us at McElhinney & Associates, Drumboe Lodge, Stranorlar, Co. Donegal on 074 91 75989 or admin@mcelhinneyassociates.com
*In contentious business a Solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement
**This information is for guidance purposes only. It does not constitute legal or professional advice. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. No liability is accepted by McElhinney & Associates for any action taken in reliance on the information contained herein. Any and all information is subject to change.
