Legal advice: Succession rights if born out of wedlock

Being born out of wedlock does not mean a person's entitlement is any less and the court will take a prudent approach when apportioning their share.

Dear Karen,

I am farming at home all the time with my father. He is in his early 80s. I have two sisters who my parents looked after and set them up with a deposit for a house and money. I have been told by my father that the farmlands are willed to me. My mother died a few years ago and the land is solely in my father’s name. Recently, the entire family got an awful shock as it turns out my father had a child out of wedlock with another lady before he married my mother. She has met with my father and he has acknowledged her as his daughter.

While I want to have a relationship with this lady and my father wants to do right by her, what are her rights? Are her rights different because of the fact she was born outside wedlock?

Can she make a claim over the land that I have worked all these years and was promised?

Dear Reader, 

In short, the answer is yes – your half-sister will have an entitlement to a share of your father’s estate upon his death.

Assuming she has not been adopted, and therefore her succession rights are still intact, your half-sister will have a claim on your father’s estate per Section 117 of the Succession Act 1965. 

As your father has not provided for his daughter throughout the course of her lifetime, the court may rule that she is entitled to a share in his estate to offset his moral failure to adequately provide for her as a parent. 

The court will consider the gifts both you and your sisters have received from your father as well as the circumstances of your half-sister’s life and they will rule accordingly.

One should note that, just because your half-sister was born out of wedlock, does not mean her entitlement is any less than that of you and your sisters and the court will take a prudent approach when apportioning her share.

However, there may be some measures you can take to protect your own interests in your father’s estate.

If you are looking to protect your claim on the family farm, it may be in your interests to suggest to your father that he leaves a gift in his will to his daughter or perhaps gives her one whilst he is still alive. This would lessen her entitlement if she were to make a Section 117 claim and potentially prevent any claim by her being made on the farm. Of course, your father should consult his solicitor and tax consultant before any gift is given and your father should make his solicitor aware of this daughter as well.

You may wish to also consider having the farm transferred into your sole name in your father’s lifetime, provided that your father has the capacity and is happy to do so. This is the one guaranteed way to protect your claim on the farm.

In the event that your father does not transfer the farm to you and does not leave you what he always promised to you in his will, you may be able to bring a proprietary estoppel claim. As your father had promised the farmlands were willed to you, you may be able to enforce that promise.

For the promise to be enforced, it must be shown that your father, in no uncertain terms, assured you that the farm was yours to inherit and on the basis of this assurance you acted to your determent.

• Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.

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While every care is taken to ensure accuracy of information contained in this article, solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.