SECTION 117 APPLICATIONS
“Proper Provision for the Child”
Children do not have an automatic right or entitlement to benefit from the estate of their parents. Indeed, a parent may choose not to give a particular child or indeed, any children, any benefit at all. However, a child (of any age) that has not been included in a parent’s Will or did not receive what they understand to be a fair share may be entitled to make an application to Court for provision or further provision under Section 117 Succession Act 1965.
Section 117
(1) Where, on application for and 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.
A Section 117 application can only be made when the parent has made a Will and does not apply to intestate estates.
The Court considers the application from the point of view of a “prudent and just parent” which is an objective standard meaning the test is not what a particular parent felt or intended rather what a fair-minded parent in similar circumstances could reasonably have done.
The “moral duty” to make “proper provision” can possibly be discharged during the parent’s lifetime with the Court taking a holistic view taking in to account the circumstances of all the children and how they were provided for, or otherwise, during the lifetime of the parent.
The six-month time limit
Proceedings must be brought within six months from the first taking out of the grant of representation of the parent’s estate. This is a time limit that is strictly applied by the Courts. Therefore, it is extremely important to obtain advice as soon as possible in circumstances where a child is of the view that they have not received fair provision from the estate of the parent.
For further information on any probate litigation matter please do not hesitate to contact any of our Litigation Solicitors, Brendan Dillon or Daniel McLaughlin on 01 2960666.
