If children are “left out” of a will, deliberately or in error, they may apply to court for a declaration that the parent has failed in moral duty to make proper provision for them, writes Karen Walsh.
Children have no absolute right to inherit any part of their parent’s estate.
It is customary for most parents to make provisions or bequests to their children in their will.
However, there is no legal requirement for parents to do so, and in some cases, deliberately or in error, the deceased’s offspring may not be provided for.
This can be challenged legally. But it is not always so straightforward — as this extract from Farming and The Law, by Karen Walsh, outlines.
Unlike a spouse or civil partner, children have no absolute right to inherit any part of their parent’s estate if the parent makes a will.
However, if a child considers that he or she has not been adequately provided for, he or she may make an application to 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”.
The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, states that: 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.
Each case is decided on its own merits, and the court examines the situation from the point of view of a “prudent and just” parent.
A key legal case, McDonald v Norris 2001, concerned an acrimonious relationship between a father and son.
The applicant, a son of the deceased, had been taken out of school at the age of 14 and put to work on the family farm, due to his father being unable to work following injuries in an accident.
The applicant received no remuneration for his work, and was eventually ordered to move off the farm, after he married.
The father had made a will in which he gave his other son some of the farm and had, during his lifetime, sold another section of the land.
When his father died, the applicant, being the son who had worked on the farm for many years, brought an application to the court, seeking a declaration that the deceased had failed to fulfil his moral duty to make adequate provision for him under the will.
The court held that the son was entitled to the remainder of the farm, on the basis that his father had deprived his son of an education, and a chance of an independent career.
In another case, Re LB 1988, the applicant was 40 years old. He claimed that his mother had failed in her moral obligation to provide for him. Under her will, she gave most of her vast estate to charity.
The son had a history of drug addiction. He was separated from his wife, was unemployed, and was an alcoholic at the time of his mother’s death. The court held that she did not fail in her moral duty to him.
Judge Finlay, in a different case, Re IAC, declared that there is a relatively high onus of proof on the child applicant.
The child must show a positive failure in moral duty on the part of the parent.
Prospective applicants in claims of this nature should always be aware that the cost of such an application is at the discretion of the court.
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, a court can refuse the applicant the costs of the claim.
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