Wills and a Child’s Entitlements.

Wills and a Child’s Entitlements.

Under Irish succession law, a child is not automatically entitled to benefit under a parent’s will. If a parent wants to disinherit a child or children they are perfectly entitled to do so.

However, after death, a child can make a claim to the court under section 117 of the Succession Act 1965 seeking a share of the parent’s estate on the following grounds:

The parent ‘has failed in his moral duty to make proper provision for the child in accordance with his means’.

In considering section 117 claims, a court will consider the entirety of the parent’s affairs. Certain criteria to consider were set out by Court in 2003 in ‘In the Estate of ABC deceased XC, YC & ZC v RT, KU & JL [2003]’ which include:

a. Is the child of an age and situation in life where they may reasonably expect support from their parent;

b. Did the parent owe a moral duty to provide for the child, and did he in fact fail that duty;

c. Has the parent made provision for expensive education or other gifts, which would discharge the moral obligation;

d. ‘Proper provision’ is to provide within the parent’s means – but this does not mean it must be adequate;

e. Has the child an exceptional talent that should be fostered;

f. Has the child a physical or mental disability;

g. Has the child worked, for example, on the parents farm, and lived with the assumption it would ultimately be his;

Although a court has very wide powers to make provision for an applicant child, it cannot in effect make a new will for the parent.

Any claim must be brought within 6 months of a Grant of Probate or a Grant of Probate with Will Annexed issuing from the Probate Office. There is no need for the personal representative to notify any child of their entitlements to bring such a claim.

For more information on children’s entitlements contact Julie Mullan.

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