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When making a will you can, to a large extent, divide your estate whatever way you like. There may be practical or taxation reasons for structuring a will a certain way, but the law allows a wide discretion on how you divide up your assets.
If you are married, however, your spouse is entitled to a minimum share of your estate and can claim that share if you leave less than it in your will. Children are not entitled to any similar minimum share where a will exists, but can challenge the will if they feel they have not been left with enough.
The court application necessary is known as a section 117 application after the part of the Succession Act 1965 that deals with provision for children. Section 117 is relatively brief and the main part of it provides:
Where, on application by or on behalf of a child of a testator, the court is of 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.
In contrast to the position of a spouse, there is no rule as to what share of an estate might constitute proper provision. In fact, the courts take the approach that they should interfere with the contents of a will to the minimum extent possible. A court does not have the power to write a new will.
The law requires the court to consider an application from the point of view of a “prudent and just parent”, taking into account the position of each of the children and any other circumstances so as to make a decision that will be as fair as possible to all. The courts are conscious that parents must be presumed to know their children better than anyone else.
There are two key elements to a court challenge of this type: (1) has the parent failed in their moral duty to the child and (2) if they have, what provision should be made for that child? The courts apply a number of key considerations when dealing with these cases:
- Any court order cannot interfere with the legal right share of a surviving spouse, so the starting point will be what remains in the estate after the spouse takes their gift or legal right share (whichever is greater). The courts will also consider any moral duty the deceased had to others, such as other family members.
- The law should protect a child who, at their age and situation in life, might reasonably expect support from their parents. The financial position of that child is therefore a relevant factor and a child applying under section 117 faces a high onus of proof to establish that their parent has failed in their moral duty. The behaviour of the child and his/her relationship with the deceased while alive may be relevant.
- A parent’s duty is not absolute and the relationship of parent and child, of itself, does not create a moral duty to leave anything by will to a child or to leave something to each child.
- Gifts or advancements to a child during the lifetime of the parent or the provision of an expensive education, for example, may satisfy a parent’s obligation in full or in part. On the other hand, a child with a particular illness or disability may have a greater entitlement to provision than other children.
A significant number of these cases have involved family farms or businesses and the courts do recognise that special circumstances giving rise to a moral duty may arise if a child is induced to believe that by, for example, working on a farm, (s)he will ultimately become the owner of it, thereby causing him/her to shape his upbringing, training and life accordingly.
Where someone dies without having made a will the rules of intestacy in the Succession Act set out exactly what share spouses and children receive from the estate. Where a will exists, only a spouse is entitled to a specific minimum share. A child can apply for greater provision, and a wide range of factors come in to play in deciding what that provision might be. It is important when making a will to consider whether proper provision is being made for children in light of their individual circumstances and for a child who feels that they have not been left enough in a will to examine all the background factors to their situation.
The above is a general overview of the principles that arise in section 117 applications but should not be relied on as a full statement of the law. Succession law is complicated and expert advice should be taken both when making a will and considering provision for children, and when considering a challenge to a will. In particular, important deadlines apply to such challenges. Contact your solicitor immediately if you require advice on any of these issues.
