Section 117

So you want to challenge a Will in 2020 ? Section 117 is the relevant law answered.

 If anybody is reading up on this particular area they will know that the relevant piece of legislation in Ireland is the Succession Act 1965 and in particular, section 117. 

 This section is perhaps a product of its time as it states one has to prove 

“that the parent failed in their moral duty

to provide for the child of the family and in some way following on that, the child would have a claim against the estate of the parent once that parent died.  We are in a different age now and in recent years  the courts have been pro-active in making an up-to-date interpretation of that legislation.  

The case law in this area has been very instructive and should be read quite carefully by anybody with any intention to take a claim against their late parents or indeed, and/or uncle or aunts estate.

   The most important fact  to understand before going any further is that children have no automatic right to claim from their parents’ estate.  The only automatic right is of a spouse of the deceased who has what is called the legal right share. 

In our experience, most claims are brought by adult children where their parents, or at least the last parent, has died and they realise that there is a Will that they may not have known about and for some reason that particular child or grown adult at this stage is not a beneficiary in the Will .  

It should be understood that the Courts will deem that the Will is a valid Will unless it can be proved otherwise.  The usual method of attack is that the parent at the time of making the Will was not of “sound disposing mind”.  Here the adult child has a problem in that they may or may not be residing in the country, they may or may not have access to the medical records of the deceased parent and the onus is on them to prove that the Will was not valid.  To quote one learned judge in these cases who stated that 

 “one is entitled to one’s opinion but you are not entitled to your version of the facts”.

With the changing nature of the Irish family, sometimes there can be a second family and the children of the first family are aggrieved if they are left out of any Will.  It is not possible to issue proceedings and then try and go on a fishing expedition to try and find information to back up their personal  opinion that they were incorrectly  left out of the estate.  The courts are coming around to the idea that where there are adult children that it is a presumption that the parent has already properly provided for the adult children.  In summary, therefore, adult children who wish to make  claim against their parents’ estate must be very careful to have adequate evidence in relation to  the parents’ state of health when they made the Will.  This should be obtained during the lifetime of the parent rather than wait until after the deceased parent has passed on.

Also it should be noted that there is proposed legislation going through the Irish parliament where it is proposed that a claimant who is unsuccessful can not claim costs against the Estate of the deceased .  At present  an application can be made if somebody was unsuccessful in claiming against an estate that their costs of bringing the case to the court could be met out of the estate.  The idea is that it only encourages people to take such a claim. Up to this they may have their costs paid for “having a go” .  It should also be noted that if someone brings a case themselves as a personal litigant, they  are not entitled to costs where you run your own case.

This update is to show what is an uphill battle to try and prove that an adult child has some claim on a parent’s estate if they are not specifically mentioned in a Will.

 It is to be considered only after receiving expert legal advice in relation to the chance of recovery given the facts in the particular case.

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