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Inheritance Law: Can Parents Cut You Out of the Will?

Inheritance Law: Can Your Parents Cut You out of the Will?

Under new proposals to change Inheritance Law, adult children who are no longer considered to be dependents may lose out when a parent dies. The central implication of the change is that it may be harder to challenge the will of their deceased parent.

On the other hand, if a parent dies without leaving a will and their other parent is still alive, children can challenge their entitlements.

Who is proposing to change Inheritance Law?

The Law Reform Commission of Ireland has recently published a report (details here) outlining proposed changes to Inheritance law in Ireland. The key changes I want to address in this brief piece, are those relating to the duty of parents to provide for their children on their death, whether by Will or otherwise. It is important to note that the suggested changes only affect adult children and do not in any way impact on the entitlement or rights of dependent children. (Under current law a child is considered dependent if they are under 18, or up to age 23 and still in full-time education)

What are the proposed Inheritance Law changes?

Current Succession Law (details here) specifies that children “have a moral duty to make proper provision” for their children. In practice, this technically does not oblige parents to leave children anything when they die. However, if a child is excluded from a parent’s Will, then they have an entitlement to apply to the court under S.177 of the Succession Act 1965, asking the court to alter the Will and to make provision for them from their parent’s estate. The court will take various factors into account in deciding the case, and may decide to “interfere” with the will of a deceased person in order to redirect assets to a child. There is, however, no guarantee of success in such an application.

The Law Reform Commission has taken the view, that the phrase “moral duty” creates an expectation of entitlement in a child, and they propose the removal of this wording, replacing it simply with the requirement to make “proper provision”. The important thing to note is that, both under existing and the suggested new law, proper provision can have already been made during a parent’s lifetime, (e.g. the funding of college education or gifting monies such a deposit for a house) and may be sufficient to allow the full exclusion of a child from an inheritance, or the allocation of a smaller share than others.

Further, it is proposed that there should always be a presumption that a parent has made proper provision, and so the obligation falls to the child making a claim under S117, to prove that proper provision has not been made. The Commission sets out 3 possible grounds which can be used to prove that a parent has not made proper provision in a Will:

1.       That the child has a particular financial need, which may include a health or dependency issue.

2.       That an item of the deceased’s estate is of sentimental value to the child.

3.       Where the child has provided care and support to the parent.

Where there is no Will

The position under Irish Law if a parent makes no Will, is entirely different. This is termed an “intestacy” and in this situation, the deceased’s estate is divided into very precise shares. If there is a surviving spouse and children, the estate is divided into two parts – two-thirds to the surviving spouse, and one-third to the child or children. If there is no surviving spouse, but only children, the entire estate is divided among the children in equal shares. Currently, the court cannot interfere with this, and a child has no right to apply to court to change the situation.

The Law Reform Commission now proposes that this is changed, and that the right of a child to apply to court under S117 is extended to intestate deaths. At the time the Succession Act 1965 was enacted, the Oireachtas considered doing just this. However, it was believed at the time that this would open the floodgates to litigation in the area. Having looked at other countries over past years, this appears not to have happened, and so the proposal is now put forward. In many respects, this is the more fundamental and far-reaching of the changes proposed.

What the Future Holds

If a child is excluded from a parent’s Will, or has been given a reduced share of the estate, that child can still apply to court to change the Will. However, I believe that the new law will create a more challenging situation for such children, as they would have to fall quite clearly into certain categories, in order to succeed.

If the law is changed to extend S117 to intestate estates, certainly this pair of legal eyes will be watching carefully to see how that would impact on the situation of surviving spouses, and their current legal entitlement. How willing will a court be to take away from that share, to give to a child?

The changes, in reality, are unlikely to have a major impact on the majority of society – where most parents may perhaps leave behind a modest home, and some small savings or insurance. However, the law will have clear implications for parents who hold substantial assets, which may include farmland or business assets. For such cases, the proposed changes may, in fact, create a greater hurdle for children to overcome.

If you have any enquiries about Wills or Inheritance Law issues, just phone us on 0404 67540 or email: info@dmburke.ie

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