The provisions of the Succession Act 1965, in particular Section 117, relate to an application by children of the Deceased for a claim under the Deceased’s Estate. The phrase from the Act is that the Testator has failed in his or her moral duty to make proper provision for a child of theirs in accordance with their means.
Recent case law has developed this concept from the Act which was passed over fifty years ago bearing in mind Ireland is a different place today than 1965 when the Act was passed.
Here is the up to date situation.
- The Court must first decide whether the person making the Will has failed in their moral duty to make provision for a child.
- If they have failed in that duty the Court will go ahead to the second stage which is to decide what provisions should be made for that child.
- Usually it is adult children with their own families who are the persons bringing cases like this. In modern case law Irish High Court Judges have looked at the financial circumstances of the person bringing the claim. In simple terms if they have done well independently of anything they might get from their parent their chances of success will be slim.
- Even though a claim may be brought if there is a surviving spouse that person’s priority known as the Legal Right Share is not affected by any claim and comes in priority to any Court Order.
- If there is any disposal of any assets within three years of the date of death an application can be made to bring these assets back into the Estate if it can be shown that they were transferred out for the purpose of defeating or reducing a share of the spouse, civil partner or children or leaving any of the above not provided for. In modern terms this could be a situation where somebody has left their spouse, is not legally separated but has left benefit to a partner in a new relationship.
- The practice to date has been to bring these proceedings in the High Court. With recent changes in the Court system these can be brought in the local Circuit Court for a saving of costs. If they are heard locally they are treated as a Family Law case and are therefore held in private.
- Finally the six month deadline for issuing proceedings after the date of the Grant of Probate is still in existence and there is no power to extend that time if a claim is not brought with that six month period.