My mother recently died and I have received nothing in the will

Thu, 16 Nov, 2023 - 15:08

Stephen Coppinger

Dear Stephen,

My mother recently died. She was transferred the family farm from my father, who passed away a couple of years back. I am one of four children. My older brother has farmed the lands for many years and, under my mother’s will, is due to inherit the farm, while my other two siblings are to receive monies and have both received sites in the past to build houses on.

I have received nothing in the will. I am the only member of the family who did not stay in the area, and I emigrated for many years and returned to Ireland in the last few years.

Although I didn’t live locally, I always had a good relationship with my parents and I am disappointed not to receive anything. What are my legal options here?

Dear Reader,

As a child, you do not have an absolute right to inherit any part of your parent’s estate if the parent makes a will. However, pursuant to Section 117 of the Succession Act 1965, if a child considers that he or she has not been adequately provided for, he or she may make an application to the court to seek a declaration that the parent has “failed in his moral duty to make proper provision for the child in accordance with his means.”

This is known as a Section 117 application. If the court accepts that proper provision has not been made, the court can order that such provision is made from the deceased's estate as they think is just.

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.

Typically, the two tiers required to bring a successful S117 application are:

The court must decide whether the testator has failed in his moral duty to make provision for a child; and
Only if so failed, the court will look to see what provision should be made for the child.

The court will look at the facts, particularly whether you were provided for in their lifetime. For example, they will take into consideration whether you obtained any previous gifts or monies from your parents during their lifetime.

The deceased parent is judged against the standard of a “prudent and just” parent, that is, what would constitute proper provision from the point of view of a prudent and just parent.

If you are alleging that proper provision was not made for you, you must show that the deceased parent failed in his or her moral duty. This is a high standard and is difficult to establish.

If you intend to bring a Section 117 application to court against your parent’s estate, you need to give this consideration in advance of bringing such an application and you should be aware that the costs of such an application is at the discretion of the court and an unsuccessful applicant is not necessarily entitled to have the costs of the application paid out of the estate of the deceased. In some cases, the court can refuse the applicant the costs of the claim.

Please note that such a claim has to commence within six months of the taking out of representation of your mother’s estate, also known as a grant of probate. If you are considering bringing a claim, I advise you to consult with a solicitor.