Succession Law Part 4 Children s Rights

LW 288 Law of Real Property Succession Law- Children’s Rights EW Feb 2012 Page 1

LW 288 Law of Real Property

Succession Law: Rights of Children

Relevant Reading

De Londras Chapter 16

Lyall Chapter 28

Wylie Chapters 14 & 15

Learning Outcomes:

- To explain what a ‘child’ is entitled to under their the Succession Act and what

options they have;

- To demonstrate when S117 Succession Act 1965 applies and the

factors/criteria/standards the court will consider under this section;

- To apply this to a hypothetical situation.

What is a child entitled to?

- The Succession Act does not provide for a set percentile share of the estate of

the deceased in favour of his children; rather, S.117 allows a child of any age to

make an application to the Court for adjustment of their parent’s estate on the

basis that the deceased parent has failed in their moral duty to make proper

provision for the applicant child either during their lifetime or on their death.

Applicable Legislation- S117 Succession Act 1965

Section 117 provides: (1) Where, on application by or on behalf of a child of a testator,

the court is of opinion that the testator has failed in his moral duty to make proper

provision for the child in accordance with his means, whether by his will or otherwise, the

court may order that such provision shall be made for the child out of the estate as the

court thinks just.


(2) The court shall consider the application from the point of view of a prudent and just

parent, taking into account the position of each of the children of the testator and any

other circumstances which the court may consider of assistance in arriving at a decision

that will be as fair as possible to the child to whom the application relates and to the

other children.

(3) An order under this section shall not affect the legal right of a surviving spouse or, if

the surviving spouse is the mother or father of the child, any devise or bequest to the

spouse or any share to which the spouse is entitled on intestacy.

(3A) An order under this section shall not affect the legal right of a surviving civil partner

unless the court, after consideration of all the circumstances, including the testator’s

financial circumstances and his/her obligations to the surviving civil partner, is of the

opinion that it would be unjust not to make the order…

(6) An order under this section shall not be made except on an application made within

six months from the first taking out of representation of the deceased’s estate.

Main features of S117

- Provision for a child is not automatic, but depends upon application to court,

within the time limit laid down in S117(6). There is no provision for its extension.

- Application may be made only by or on behalf of children. This does not include

grandchildren. For deaths after 14 June 1988, this includes non-marital children.

- The test in deciding whether proper provision should be made is not whether the

child was a dependent, but whether the testator has ‘failed in his moral duty to

make proper provision’ viewed from the point of a ‘prudent and just parent’. 1

- The court, by S117(2), is to consider the application from the point of view of a

prudent and just parent;

- The circumstances relevant to the decision of the court and to the exercise of the

court’s discretion have been elaborated in the case-law on this topic. However,

each case must always be considered in the light of its own individual

circumstances.

1 S117(1) SA 1965


- The court is not permitted to make provision for a child which interferes with the

legal right share of a surviving spouse, nor with a devise or bequest to, or share

on intestacy of, a parent of the child. 2

- Where the surviving spouse is the parent of potential claimants and the entire

estate is left to him or her, the court cannot intervene under that section.

- The court will not hear proceedings issued six months after the first raising of

representation to the estate.

- The proceedings will be held in camera.

Two stages in considering application

- It has been repeatedly stated that the court’s determination is reached by way of

a two stage process:

i) the first is that the court must decide whether the testator has failed in his

moral duty to make proper provision for the child;

ii) Only if he has failed to do so, does the court proceed to the second stage,

which is to decide what provision it will order to be made for the child.

Laffoy J. has confirmed this procedure in A and C v Anor.3

Moral duty

- A condition precedent to the court making provision for a child is that it is of

opinion ‘that the testator has failed in his moral duty to make proper provision for

the child’. The question is whether it has been discharged but in some cases the

question of whether there was a moral duty has been raised as a preliminary

matter. It appears to be that, by virtue of S117(1), there is a moral duty on a

testator to make proper provision for children, but that provision could be made

by will or otherwise. As Kenny J stated in FM v TAM4 ‘the relationship of parent

and child does not of itself and without regard to other circumstances, create a

moral duty to leave anything by will to the child’. This duty may have been

discharged inter vivos by gifts or settlements made during the lifetime of the

testator in favour of the child, or by providing the child with a high standard of

2 Re IAC [1990] 2 IR 143 3 [2007] IEHC 120. 4 FM v TAM (1970) 106 ILTR 82 at 87


education, or in some other way. Whether a testator is under a moral duty to

make some provision for a child by his will therefore depends upon the provision

he has otherwise made. The existence of such a duty is one which the court

must ascertain objectively.

Has proper provision been made? The guidelines set out in the section for

deciding whether proper provision had been made are open. By S117 (1) the test

is whether a testator has failed to make proper provision for the child in

accordance with his means and S117 (2) says the court is to consider the

application from the point of view of a ‘prudent and just parent’. The first attempt

to elaborate guidelines was made in FM v TAM.5 Kenny J said:

- “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 and must depend upon (a) the

amount left to the surviving spouse or the value of the legal right if the survivor

elects to take this; (b) the number of the testator’s children, their ages and their

positions in life at the date of the testator’s death; (c) the means of the testator;

(d) the age of the child whose case is being considered and his/her financial

position and prospects in life; (e) whether the testator has already in his lifetime

made proper provision for the child.”

- Finlay CJ approved the tests set out by Kenny J in FM v TAM in Re IAC

deceased6 and noted that there was a ‘relatively high onus of proof on an

applicant to prove not that they were disappointed by the parent’s failure to

provide for them to a greater extent but that there had been a positive failure of

moral duty on the part of the parent. It was also remarked that where there was a

relationship of trust and kindness between the parties, the court should ‘entertain

some significant reluctance’ to vary the will, but that different considerations

would apply where there was ‘marked hostility’ between the parties.

Guidelines under S117 were also considered by Keane J. in Re LB deceased.7

5 5 FM v TAM (1970) 106 ILTR 82 at 87 6 [1989] ILRM 815 7 [1998]


- Proper provision for the applicant child does not necessarily imply equal

provision for all children;

- A failure in moral duty can be found if T is shown to have disregarded the special

needs (arising either from physical/mental disability) of any one child;

- The understandable desire of parents to try to avoid friction among their children

by treating them all as equally as possible needs to be recognised – although it

cannot bind the court in its deliberations upon a S.117 application;

- Where T seems to have discharged his/her moral duty to a child while alive, the

fact that a parent can be expected to know the child better than anyone else can

be taken into account in explaining why T’s earlier behaviour is not replicated in

his/her will: T may reasonably have felt that further benefaction by will would not

have done the child any good.

- In the case of Re ABC decd, XC and Ors v RT & Ors8 Kearns J took the

opportunity to extract the principles that had been established up to that date.

- (a) the social policy underlying S.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 T, at the time of his death, owes

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 an applicant for relief under

S.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 S.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) S.117 does not create an obligation to leave something to each child;

8 [2003] IR 250 at 262


- (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 T;

- (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 S.117 is not to make adequate provision but to provide

proper provision in accordance with T’s means;

- (k) A just parent must 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 a S.117 application, the position of an applicant child is not

to be taken in isolation. The Court’s duty is to consider the entirety of T’s affairs

and to decide upon the application in the overall context. i.e. while the moral

claim of a child may require T 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) Another example of special circumstances might be a child who had a

long illness or an exceptional talent which it would be morally wrong not to foster;

- (o) Special needs would also include physical or mental disability;

- (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

T;

- (q) The test to be applied is not which of the alternative courses open to T

the court itself would have adopted if confronted with the same situation but,

rather, whether the decision of T to opt for the course he did, of itself and without

more, constituted a breach of moral duty to P;

- (r) The court must not disregard the fact that parents must be presumed to

know their children better than anyone else.


- In the case which was before the court, the testator, following a divorce in

England which was alleged was invalid, had remarried. Under his will, all his

property was left to his second wife. No direct provision had been made for the

two children of his first marriage or for the two children of his second marriage.

The testator had created a discretionary trust- plaintiffs were trustees and both

plaintiffs and defendants were beneficiaries.

- The children from the first marriage instituted proceedings under S117, claiming

that by establishing a discretionary trust he had failed to make proper provision

for them. Kearns J. outlined the principles above and also took into account the

moral duty owed by the deceased to his second wife, the stepmother of the

claiming children. Kearns J also had regard to a moral obligation which the

deceased owed to his mother who was still alive and in a nursing home.

- It was held that the deceased did owe an ongoing moral duty to his son who had

shown himself to be unable to manage his business affairs. The deceased was

deemed to have knowledge of this inability and the resultant unlikelihood that the

P would succeed in business at the time of his death. This ongoing moral duty

was satisfied by the establishment of the discretionary trust. (Noted that it may

not always do so, but did in the circumstances of this case.)

What is Proper Provision?

- The moral duty of the testator is to make ‘proper provision for the child in

accordance with his means’. This is a variable standard which does not involve

the giving of a fixed share to each child or to the children as a whole.

- McDonald v Norris 9–Provision satisfying S.117 should be advancements that

“relate either to an education which enables the child to make his way in life or

else advancements of money which would enable the child to establish himself

by their use.”

9 [1999] 1 ILRM 270 (HC); [2000] 1 ILRM 382 (SC)


Measuring the Moral duty- factors taken into consideration

Provision during lifetime

- The obligation falling on a testator to make proper provision for his children is

one which does not necessarily require provision to be made by will. As S117 (1)

states, the moral duty of the testator is ‘to make proper provision for the child in

accordance with his means, whether by his will or otherwise’.

- Needs of children

- The reasonable needs of a child are taken into consideration and medical or

other conditions that may result in a lesser ability to provide for oneself or a

greater need for care and support are also to be taken into account. – S(D) v

M(K) & Anor 10

- Where one of the children of T has a physical or mental disability and, as a result,

requires particular support, and the remaining children are well-established in their

lives and professions, T may be said to have made proper provision if he left

everything to the child with the disability and nothing to the remaining children, even

if they were badly treated by T and not enabled to acquire further education when

they were younger – McC (M) v M 11

Equality

- S.117 does not require a parent to treat all children equally. Thus, while a court

will respect a parent’s wish to treat their children equally, it will not necessarily

find that proper provision has been made just because the children were treated

equally – In the estate of LB: EB v SS 12

10 [2003] IEHC 120 11

[2001] IEHC 152

12 [1999] 2 ILRM 141


The Parent – Child Relationship

- The nature of the relationship between the parent and the child will be significant

in the consideration of S.117 applications.

o A caring relationship will result in the Court being relatively reluctant to

interfere;

o The behaviour of each party may have an impact on the extent of the

moral duty owed at the time of the parent’s death.

JH & CH v Allied Irish Bank 13 Ps were the only children of T, who was married to their

mother in 1953. The marriage began to deteriorate in 1961/62 and in 1971 T left the

family home and went to live alone in a flat, where he remained until his death. From

1971 to his death T had only formal communications with his family, and the relationship

between him and his children suffered. The children remained with their mother and had

very little to do with their father. On his death, T made very little provision for both of the

applicant children.

*The Court had to consider whether the children’s neglect of their relationship with their

father vitiated his moral duty towards them? Held: ‘The Testator did have a moral duty,

however neglected, thwarted or aggrieved he may have felt.’

Re McDonald: McDonald v Norris14

T had 2 children – P and a younger son. Upon his death, T left all of his property on trust

for the daughter of a neighbouring family with whom he had lived and who had taken

care of him. This was subject to £5,000 left to P “in discharge of any moral obligations”

which T might have towards him.

P had been in occupation of the land. Relations between P and his father broke down in

1980 because of P’s marriage choice. Relations between the father and son became

violent, resulting in the Gardai becoming involved and T seeking possession of the lands

from his son. P counter-sued for compensation for the work done, as a result of which P

13 [1978] ILRM 203 14 [2000] 1 ILRM 382


was ordered to leave the land and the father ordered to pay him £11,000. P paid £2,000

to his father in order to remain in the land until 1985, but he stayed there for some time

once the agreement had expired. As a result, P was imprisoned for 11 months, during

which time his wife and son ran the quarry. In October 1986 T regained possession and

transferred the lands to P’s brother. From then on P engaged in great hostility against

his father and the family with whom his father lived, including threatening them and

causing damage to their property. In May 1988, P was bound to keep the peace for 2

years following charges before the DC involving verbal abuse and threatening

behaviour.

Following his father’s death, P made a S.117 application claiming that his father had

failed in his moral duty towards him by leaving him only £5,000.

HC: application was unsuccessful – held: the son and his wife may not have been

responsible for the hostility directed towards the deceased and the family with whom he

resided, but they were aware of it and had done nothing to stop it. P had behaved

appallingly towards his father from 1984 onwards, and had permitted and encouraged

the intimidation and bullying of T when he was more than 70 years of age. The Court

concluded that T, at the time of his death, was entitled to consider that he had given

considerable benefits to P while he was alive, and that his moral duty towards his son

was affected by P’s conduct.

According to McCracken J. – the scheme of the Succession Act 1965 implied that the

behaviour of a child towards his parent was something that the court could take into

account when assessing moral duty and, in the circumstances, any remaining moral duty

(taking this behaviour into account) had been properly provided for by the deceased.

SC (on appeal): Barron J. reversed decision of the HC – held: the HC had been correct

in taking into account the behaviour of the applicant child, which could have the effect of

extinguishing or reducing the moral duty of the parent. However, the behaviour had to be

seen in its context. The reasons behind the son’s behaviour, i.e. the father’s disapproval

of his marriage choice and attempt to have him removed from the land that he had

farmed since being taken from school to do so in 1968, were relevant factors. Thus,

while the applicant’s behaviour did diminish the moral duty owed to him by his father, it

did not extinguish it and the proper provision had not been made.


EB v SS15 concerned a S.117 application stated to be for the benefit of the grandchildren

of the testatrix (T). The applicant was the son of T, who had received many benefits from

her and his father, including a house bought for himself and his sister by his father, in

which the applicant resided with his wife and children, education, employment and a

substantial sum of money. The applicant had previously had an alcohol and drug

addiction and although his mother was aware of this, she did not make any further

provision for him in her will.

Rather, she considered that she had treated all her children equally by giving them equal

shares from the proceeds of sale of shares in her late husband’s company following his

death, and that she was not obliged to provide further for her son. Her son, who had

enjoyed sizeable provision from both of his parents during their lives, claimed that his

mother had a moral duty to provide for his needs, one of which was his need to provide

for his own children – as she was aware that, at the time of her death, he and his wife

resided with their children and were dependent on social welfare and because she had a

large estate, she ought to have made provision for him in her will. Her failure to do so, he

claimed, constituted a positive failure in her moral duty.

P’s application failed in both the HC and SC. While conceding that the deceased in this

case might have had some obligation to help her son to provide for his own children, this

was not a matter that could be taken into account by the court in assessing whether she

had fulfilled her moral obligation as required by S.117.

Disinheritance

- Section 121 limits the ability of a person to disinherit his spouse and children by

disposing of property prior to death so as to diminish the size of his estate.

- S.121 gives the Court the discretion to deal with dispositions of property made

within three years of the death of the deceased that, the Court is satisfied, were

intended to defeat or substantially reduce the shares of a surviving spouse in

testacy/intestacy or to defeat or substantially reduce the shares of a surviving

15 [1998] 4 IR 527


child in intestacy or to leave any of the deceased’s children insufficiently provided

for.

- The Court may order that such disposition shall, in whole or in part, be deemed

to be a devise/bequest made by will which forms part of the deceased’s estate –

resulting in the property being subject to the LRS of the surviving spouse or a

S.117 application by a child of the deceased. If the property has been sold the

claim relates to the consideration offered for the property.

REVIEW

1. What percentage is a child entitled to when their mother/father dies?

2. Explain who is a ‘child’ of the testator.

3. Olivia’s father died intestate. She is considering making a S117 claim. While you

are not aware of all the circumstances, what are your initial thoughts about this?

4. John’s father died in 2009. Under the terms of the will John received €10,000.

Probate of the will was granted in early 2010 and the administration of the estate

was concluded by December 2010. It is now February 2012. John feels

disappointed that he didn’t receive a six-figure sum. He has decided to pursue a

S117 claim. What advice would you give John at this stage.

5. Gerry O’Malley died on 1st December 2011. In his will he left all his property to

his wife Mary. Gerry and Mary’s twin children Jonathan and Edwina, are

disappointed that they didn’t receive anything under the terms of the will. May

they make a S117 claim? Why?

6. Sean O’ Se died on the 15th January 2012. Under his will, Sean left all his

property to his two sons in equal shares. The two brothers are delighted at the

prospects of their inheritance. However, Tomas, aged 22 who is a grandson of

Sean is most disappointed that his grandfather didn’t leave him a few bob.


Tomas intends pursuing a S117 claim. Advise Tomas regarding his prospects.

(There were no other children and Sean’s wife Nora is also deceased).

7. John has come into your office to give you instructions for his new will. During the

consultation, John tells you that he has two children from his first marriage. He

tells you that he got divorced when his children were around 2 and 3 years old

and has not seen the children since his divorce. He also tells you that since the

divorce he has made no maintenance payments to his children. His instructions

are to leave everything he owns to his second wife with whom he has no

children. Advise John on the possible consequences of drafting a will in those

terms.

8. Emily comes into your office for some advice. She believes that her husband,

who is dying has made a new will and has left her nothing in his will. She has two

small children and she says that she needs some sort of inheritance to support

the children when her husband is gone. Advise Mary as to what legal protection

exists for her and what rights her children have to their father’s estate.

9. David, a widower, married Liz, a younger woman, shortly before his death in

2011. The week before getting married to Liz, he made a valid will expressed to

be in anticipation of that marriage, in which he left everything to Liz. Sean’s son,

Kevin, aged 29, who lost his job last week, is upset about this. Advise Kevin,

outlining any further information you would need to give him conclusive advice as

to his situation.

Succession Law Part 4 Children s Rights

Documents

surviving

ongoing moral

moral duty

make proper

proper provision

didnt receive

moral duty

lw 288 law