Section 117: What can I do if I'm not provided for in a will?

There is law in Ireland that if a child is not properly provided for by a deceased parent in their will or during their lifetime, they can make an application to High Court and the court can make order that they are provided for. 

There is a law in Ireland that if a child is not properly provided for by a deceased parent in their will or during their lifetime, they can make an application to the High Court and the court can make an order that they are provided for. 

This is known as an S117 application, S.117 (1) of the 1965 Act provides as follows:

Where, on application by or on behalf of a child of a testator, the court is of the 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.

Under current law, where a parent dies intestate which is without a will, the estate is distributed in accordance with specific fixed shares which are set out in the 1965 Act.

The courts may not vary these shares, even in cases of particular hardship. An application under s. 117 is not possible where a parent dies intestate.

It is important to note that s. 117 applications only arise on a testate death (where there is a will), and where the dissatisfied child (the applicant in the court case) is a child of the testator.

Any order under an s. 117 application cannot affect the legal right share of a surviving spouse, or if the surviving spouse is also the parent of the applicant child, an order under s. 117 cannot affect a device or a bequest to the surviving parent. 

Where the entire estate of a testator is left to a surviving spouse who is a parent of the applicant child, an order under s.117 cannot be made.

An interesting example of Section 117 recently arose in the High Court of Ireland. A man who believes he was born in a mother and baby home has been awarded €225,000 out of the estate of his estranged birth mother. The man did not properly meet his mother until he was in his 20s.

The woman did not include the man, who was her only child, in the will.

He applied to the High Court under section 117 of the Succession Act seeking proper provision out of his late mother’s estate. He brought the case against his late mother’s niece in her capacity as executrix of the estate. 

The judge Ms Justice Siobhan Stack was informed that the current net value of the woman’s estate is approximately €779,000. The man emphasized his upbringing and the fact his mother and her family never provided for him at any time during his life and that he believes he is entitled to part of her estate. 

The defendant claimed that DNA evidence was needed as concrete evidence that the man was the testator’s son. He provided the evidence and Ms Justice Stack accepted his evidence that it was well known in the deceased’s family that he was the woman’s son.

Ms Justice Stack found that, given the absence of any competing moral claim and her intention to leave considerable assets to a series of nieces and nephews, the woman ought to have provided for the plaintiff in her will. 

The judge ruled that a lump sum of €225,000 should be awarded to the plaintiff charged on the estate’s agricultural lands.

This is an interesting case as typically in this claim, a child would have lived and grown up with the parents. If you believe you were not adequately provided for in a will by your parents, it is advisable to speak to a solicitor.