S117 of the Succession Act 1965

By March 10, 2015 No Comments

S117 of the Succession Act 1965

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.

[S117 of the Act of 1965 is hereby amended by the insertion of the following subsection after subsection (1)]

a) An application made under this section by virtue of Part V of the Status of Children Act 1987, shall be considered in accordance with subsection (2) irrespective of whether the testator executed his will before or after the commencement of the said Part V.

b) Nothing in paragraph (a) shall be construed as conferring a right to apply under this section in respect of a testator who dies before the commencement of the said Part V.

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.

4) Rules of court shall provide for the conduct of proceedings under this section in summary manner.

5) The costs in the proceedings shall be at the discretion of the court.

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.

Under the provisions of Section 117 of the 1965 Act outlined above, where a child of a deceased parent can demonstrate that the deceased parent has failed to make proper provision for the child in accordance with his/her means whether by will or otherwise, the child can bring an action pursuant to the Act for relief.

Time Limits:
An action under s 117 must be commenced within six months of the first raising of representation of the estate of the deceased. Thus it is important to find out whether a Grant of representation has been issued.

S117 only applies where a person dies wholly or partly testate and does not apply in cases of intestacy (where a person does not make a will). Furthermore applications can only be made by and on behalf of a child of a testator and since the introduction of the Status of Children Act 1987 (S31), non-marital children are also potential claimants, but child does not include grand-child.

Moral Duty:
S117(1) of the Act, it presupposes that there is a moral duty of the testator to make proper provision for his children, whether by his will or otherwise. The Court must be of the opinion that the Testator has failed in his moral duty to make provision for the child in accordance with his means.

The first attempt to lay down guidelines was in the case of FM v TAM where Kenny J stated “it seems to me that 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 on

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 or her financial position and prospects in life.

e) whether the testator has already in his lifetime made proper provision for the child”.
The above guidelines have consistently been followed by the Courts on the correct basis upon which a decision is to be made. The Supreme Court have approved the above guidelines in the case of Re IAC (1990) but have added a further qualification that a relatively high onus of proof rested on the child claiming one must prove a positive failure in the moral duty of the deceased parent.

Proper Provision:
The moral duty of the testator is to make ‘proper provision for the child in accordance with his means’. This is a difficult concept to describe as factors such as children’s health, ages and disabilities are important. It is possible that that the testator may have discharged their duty to the child by gifts or settlements made during their lifetime or providing the child with a high standard of education etc.

In the case of Re ABC decd; XC & Ors v RT & Ors (2003) Kearns J set out the relevant legal principles which had been agreed by Counsel as the established authorities under s 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.”

Please note that s 117(5) states that “costs in the proceedings should be at the discretion of the Court”.

Finally this provision of the Succession Act is widely used by potential child claimants but it is important to understand that each case will depend on its own circumstances and may take into account various factors such as the age and prospects in life of the child, financial position, age and mental capacity, health of the child. The Court will not interfere with the legal right share of a surviving spouse nor with any devise or bequest or share on intestacy of a parent of the child.

We would advise you to contact Hughes Murphy Solicitors if you require further advices in this area.