Under the provisions of Section 117 of the Succession Act 1965 where a child of a deceased parent can show that the deceased has failed to make proper provision for the child in accordance with his means whether by will or otherwise, the child can bring an action pursuant to the Act for relief. The definition of a child includes adopted, non-marital, foster and step children. Whereas the Courts are reluctant to intervene in an estate of someone who has made a will with specific provisions contained therein it will intervene if an applicant can show that; the parents had a moral duty to provide, the parents failed in that moral duty and the applicant child now has a need.
A section 117 application must be made within six months of first taking a grant of representation, e.g. Grant of Probate, in the deceased’s estate. There is however no obligation on an executor to an estate to notify the children of their right to bring a Section 117 claim.
In one of the most recent reported cases under section 117 X.C. v. R.T.(Succession: proper provision) Kearns J. set out with approval the relevant principles which had been agreed by counsel as established by the considerable body of case law. Kearns J. said that;-
“Counsel on both sides were agreed that the following relevant legal principles can, as a result of these authorities, be said to derive under section 117:-
(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, owed any moral obligation to the children, and if so, whether he has failed in that obligation. (c) There is a high onus of proof placed on the applicant for 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.
(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 anything by will to the child.
(g) Section 117 does not create an obligation to leave something to each child.
(h) The provision of an expensive education to 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, if 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 to his wife, but all his moral obligations e.g. to aged and infirm parents.
(l) In dealing with section 117 applications, the position of an applicant child is not to be taken in isolation. The court’s duty is to consider the entirety of the testator’s affairs 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 altogether.
(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) Special needs would also include physical or mental disability.
(o) Another example of special circumstances might be a child who had a long illness or an exceptional talent which it would be morally wrong to foster.
(p) Although the court has very wide powers both as to when to make provision 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 adopt for the course he did, of itself and without more, constituted a breach of moral duty to the plaintiff.
(r) The court must disregard the fact that parents must be presumed to know their children better that anyone else.”
If you feel that adequate provision has not been made for you under your parent’s will please consult with us with you without any obligation. To make an enquiry please phone us at 045 875333