Succession Rights of Children/Section 117 Applications
Great care must be taken when making a Will to make proper provision for all children.
A number of cases have gone before the Courts where a child believes they have been unfairly treated in the Parent's Will.
Under the Succession Act Section 117 provides that if the Court is of the opinion that a Parent has failed in his moral duty to make proper provision for a child then Court may then Order such provision be made as it thinks just. In doing so, the Court shall consider the Application from the point of view a prudent and just Parent taking into account the position of each of the children and any other circumstances it considers may be of assistance.
Any Order made by the Court under this Section cannot affect the Legal Right of a surviving Spouse (one third of the Estate where there is a child or children).
Only children can make an Application under this section of the Succession Act, 1965. The provision is not about equality or fairness between children but rather the Applicant child must establish that there was a need for provision to be made for that particular child greater than that made by the Deceased either during his lifetime or under the terms of his Will. Otherwise the Parent has full testamentary freedom (subject to Legal Right shares).
Accordingly, feeling aggrieved that someone else has benefited to a much greater extent is not sufficient. There are however many examples of cases where such an Application has succeeded and the criteria have been laid down in Case Law over the years. The Testator has a moral duty to act as a prudent and just Parent would do. He is expected to take cognisance of foreseeable contingencies that will arise after his death. He must take into consideration the position of all children.
Where there is a possibility of such an Application being made great care must also be taken in relation to the Statutory Time Limits. Action should be taken immediately and any child wishing to pursue such a course of action should contact their Solicitor immediately with a view, in the first instance, to entering a Caution and also with a view to issuing Proceedings.
The costs in the Proceedings are awarded at the discretion of the Court. It is possible therefore even though a child may not succeed in such an Application he may still be awarded his costs.
For further information please contact Patrick Donaghy & Co, 13/16 Dame Street , Dublin 2, Ph: 00353 01 679 4165