Q. I am 36 years of age and my father died some six months ago. He was our last surviving parent. My brother is the Executor of the Will and I was very surprised to hear, and subsequently see in the copy Will provided to me, that my father only gave me a relatively small inheritance and left most of his Estate to be divided equally between my three siblings. I am seriously thinking of bringing a claim against my father’s Will as I think that it is very unfair. What would my chances of success be?
A. You raise a good question but also a complex one and the answer is by no means straightforward. It is important to be aware that there is no automatic right to any share in a deceased parent’s Estate when they die having made a Will. You are obviously talking about a possible claim against your Father’s Estate under the provisions of Section 117 of the Succession Act, 1965. This section of the Succession Act allows the child of a Testator to make an application to Court on the basis that the parent has not made adequate provisions for that child. It has to be said however that many adult children are of the belief that there is an automatic right to a share of their parent’s Estate by virtue of the provisions of this section of the Succession Act. This is not the case.
Section 117 does not create an OBLIGATION to leave something to each child. The relevant date for deciding whether or not the deceased failed in his moral duty to make proper provision for any child is the DATE OF DEATH and not the DATE OF THE WILL. Obviously, you have only provided us with the very basic information and, as such, this response is a general guideline which may be of assistance to you and which you can adapt to the particular circumstances of your case. However, for the purposes of considering your position, you need to look at the date when your father made that Will.
It is also extremely important to point out that the statutory time limit for bringing proceedings under Section 117 of the Succession Act is EXTREMELY SHORT being 6 MONTHS from the issue of the Grant of Probate or Letters of Administration with Will annexed. You mention that your father died some 6 months ago. As your brother is the Executor, he is in charge of applying for the Grant of Probate and you will need to make enquiries as to whether or not the Grant has yet issued. If it has issued then the six months have now started to run and you need to be ready to initiate your claim within that 6 month period. There is a great deal of preparation work prior to issuing these proceedings and, if when you have read this article you still believe that you do have a claim against your father’s Estate then, you will need to seek Independent Legal Advice urgently. Remember that there is no provision for an extension of this time apart from in cases of the minority of an applicant or unsoundness of mind.
The actual application under Section 117, however, is not limited to the legal definition of a child is under 18 years of age or under 23, if in fulltime education. A child can apply at any age.
The Courts have had to make many decisions in these types of cases over the years and they have established as a general guideline that the relationship of parent and child does not, of itself, create a moral duty on the part of the parent to make provision for any particular child. That is to say, a parent has freedom of testation (freedom to do whatever they want with their assets in their Will) and the parent is free to dispose of their assets as they see fit. The essential guidelines are those laid down and CONSISTENTLY ENDORSED in subsequent decisions by Mr. Justice Kenny in a well-known 1972 case where the Court set out the guidelines as follows: –
“The existence of a moral duty to make proper provision by Will for a child must be judged by the facts existing at the date of death of the deceased and must depend upon
i. Amount left to the surviving spouse (if any) or the value of the legal right if the surviving spouse elects to take this;
ii. The number of the Testator’s children, their ages and their prospects in life at the date of the Testator’s death;
iii. The means of the Testator;
iv. The age of the child whose case is being considered and his or her financial position and prospects in life;
v. Whether the Testator has already in his lifetime made proper provision for the child.”
The test in respect of Section 117 is a ‘two-step test’, that is to say that the first leg of the test is to establish whether or not there was need for provision to be made and, if the Applicant succeeds in that leg of the test, the Court then goes on to decide what provision ought to be made.
Whether or not the applicant can get over the first hurdle, depends almost entirely on the extent of their real and personal assets at the date of death of the deceased. Your Solicitor will need to take the following instructions and you should consider them carefully now: –
a) Your full accommodation history;
b) Your full educational history;
c) Your full employment history;
d) Particulars of your assets held at the time of the deceased’s death;
e) Particulars of any advancements/ loans the deceased or any third party gave to the Applicant during the deceased’s lifetime;
f) Particulars of monthly outgoings at the time of the deceased’s death.
It is important to point out that costs in relation to these proceedings are entirely at the discretion of the Court. Whilst a successful Plaintiff will be awarded their costs from the Estate, an unsuccessful Plaintiff may not and there is a real risk that they may also have to pay the Estate’s costs. The determining factor in these decisions is often the legitimacy of the claim and whether or not it was genuine or spurious, designed only to force a settlement. These costs are extremely high and this needs to be considered in deciding whether or not to proceed.
The Court has decided on criteria which will be taken into account when making a determination pursuant to Section 117 and this is as set out below.
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, owes any moral obligation to the Applicant and, if so, whether he has failed in that obligation;
c) There is a high onus of proof placed on an Applicant seeking 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 must be established;
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 everything or in equal portion by Will to a child;
g) Section 117 does not create an obligation to leave something to each child;
h) The provision of an expensive education for 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 is 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 his wife, but all his moral obligations such as to aged and infirm parents;
l) In dealing with a Section 117 application, the position of an applicant child is not to be taken in isolation. The Courts duty is to consider the entirety of the Testator’s Estate 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 all together;
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) Another example of special circumstances might be a child who has had a long illness or an exceptional talent which it would be morally wrong not to foster;
o) Special needs would also include physical and mental disability;
p) Although the Court has very wide powers, both as to when to make provisions 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 opt for the course he did, of itself and without more, constituted a breach of moral duty to the Plaintiff and the Court must not disregard the fact that parents must be presumed to know their children better than anyone else.
In taking detailed instructions, your Solicitor will want a very detailed educational; and financial history for you. For example, if your father had provided a particular education to you, allowing you to become independent, possibly at the expense of other siblings then, this might well constitute a fulfillment by your father of his moral obligation to you. Similarly, if he had given you money during your lifetime and not to your siblings.
There are many reasons why your father may have done as he did. You will need to consider all of the above and if you then decide to proceed with the challenge then, you will need to prepare a very detailed financial and educational history as outlined above for the purposes of giving very detailed instructions to your solicitor with a view to commencing proceedings.