The wills & probate team here at McCarthy + Co Solicitors LLP are sometimes asked whether a parent is entitled to leave a child out of their will entirely. It is a sensitive question, and it usually arises in one of two situations: a parent who is considering doing exactly that, or an adult child who has just discovered that they have been excluded.
The short answer is “yes”; a parent can leave a child out of a will. Under Irish law, children have no automatic entitlement to a fixed share of a parent’s estate. That said, the position is not quite as final as it first appears, because the Succession Act 1965 provides a safety net that allows a child to apply to court in certain circumstances.
Children have no legal right share
Spouses and civil partners occupy a special position in Irish succession law. A surviving spouse or civil partner is entitled to a “legal right share” of the estate, which is one third where there are children, and one half where there are none. This entitlement applies whatever the will says.
Children have no equivalent right. The Succession Act confers no fixed share on a child, and there is no provision entitling a child to inherit from a parent who has made a will. A parent is therefore free, in principle, to divide their estate as they see fit, including by leaving one or more children out altogether.
It is worth noting that all children are treated equally for these purposes. Children born within marriage, children born outside marriage, and adopted children all stand in the same position, and there is no age limit. Stepchildren who have not been legally adopted are generally not treated as children of the deceased for succession purposes.
Section 117 applications
A parent’s freedom to distribute their estate is not absolute. Section 117 of the Succession Act 1965 allows a child who has been left out, or who feels they have been inadequately provided for, to apply to court for a share of the estate where the parent has “failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise”.
Two points in that wording require attention. First, the duty is one of proper provision, not equal provision. Second, the words “or otherwise” mean that provision made during the parent’s lifetime counts. A parent who funded a child’s education, gave them a site, helped them buy a home, or supported a business may well have discharged their duty long before the will was written.
If the court is satisfied that the duty has not been met, it may order that provision be made out of the estate. The court considers the matter, in the words of the Act, “from the point of view of a prudent and just parent”, and it will interfere with the will only to the minimum extent necessary.
What the court takes into account
The factors the courts weigh were set out in early case law and remain the starting point today. They include:
- The amount left to the surviving spouse, or the value of that spouse’s legal right share.
- The number of children, their ages, and their position in life when the parent died.
- The financial means of the parent.
- The age, financial position, and prospects of the child bringing the claim.
- Whether the parent had already made proper provision for that child during their lifetime.
- The circumstances as they stood at the date of death, rather than at the date the will was made.
The Law Reform Commission published a detailed review of Section 117, including recommendations that adult children should generally be presumed to have been provided for already. Those recommendations have not been enacted, so the existing law continues to apply.
Important limits on a Section 117 claim
Anyone considering a claim should be aware of three significant restrictions.
There is a strict time limit. An application must be brought within six months of the first taking out of the grant of representation. This deadline is not extendable, and claims are regularly lost because the six months has passed before advice is taken.
The spouse’s share is protected. An order under Section 117 cannot reduce the legal right share of a surviving spouse. Where that spouse is the parent of the applicant child, any gift to them under the will, or their share on intestacy, is also protected.
Section 117 applies only where there is a will. Where a parent dies intestate, the fixed shares set out in the Succession Act apply, and the courts have no power to vary them. There is no equivalent claim available.
Disappointment alone is not a basis for a claim, and a claim that fails can carry a significant costs risk. If you are considering an application, we recommend that you seek advice promptly and realistically.
If you are thinking of leaving a child out of your will
Parents have all sorts of reasons for making an unequal will. A farm or business may need to pass intact to one child. Another child may already have received substantial help. In some families, there has been a long estrangement.
Whatever the reason, an unequal will is far more likely to withstand challenge if it has been carefully prepared. If you are considering excluding a child, we recommend that you:
- Discuss your reasons openly with your solicitor so that they are properly recorded at the time the will is made.
- Prepare a signed letter of wishes setting out your reasoning, kept alongside the will.
- Keep a note of significant lifetime provision you have already made for each child.
- Consider whether the outcome would appear reasonable to an objective observer, since that is broadly the standard the court applies.
- Review your will after any major change in your family or your assets.
None of this makes a will challenge-proof, but a clearly reasoned will, supported by contemporaneous evidence, is a considerably stronger document than a bare exclusion with no explanation.
Speak to our wills and probate team
Questions about provision for children are among the most difficult issues in estate planning, and the six-month deadline for a Section 117 application means that time is often short.
If you are preparing a will that will not divide your estate equally, or if you believe that proper provision has not been made for you under a parent’s will, our wills and probate team at McCarthy + Co Solicitors LLP would be glad to advise you. To arrange a consultation, please complete our online contact form and a member of our team will be in touch.
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