ACTIONS BY A TESTATOR’S CHILDREN
Section 117(1) of the 1965 Act provides that 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.
Section 117(2) 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.
Section 117(3A) provides that:
An order under this section shall not affect the legal right of a surviving civil partner unless the court, after consideration of all the circumstances, including the testator’s financial circumstances and his or her obligations to the surviving civil partner, is of the opinion that it would be unjust not to make the order.
The moral duty of the testator
Although the relationship of the testator and child is necessary for the creation of the moral duty, the existence of such a relationship alone without regard to other circumstances is not sufficient to establish a duty under section 117 of the 1965 Act.
The existence of a moral duty to make proper provision by will for a child must be judged by the facts existing at the date of death and must depend on:
(i) the amount left to the surviving spouse or to the value of the legal right if the survivor elects to take this;
(ii) the number of the testator’s children, their ages, and their positions in life at the date of the testator’s death;
(iii) the means of the testator;
(iv) the age of the child whose case is being considered and his or her financial position and prospects in life;
(v) whether the testator has already in his lifetime made proper provision for the child.
It is important to note that a failure to provide a child with an equal share of an estate will not automatically lead the court to conclude that the deceased failed in his moral duty towards that child. In the Supreme Court decision in EB v SS, Keane J. stated that:
“It is also obvious that it is not necessarily an answer to an application under s.117 that the testator has simply treated all his or her children equally. The maxim ‘equality is equity’ can have no application where the testator has, by dividing his estate in that manner, disregarded the special needs (arising, for example, from physical or mental disability) of one of the children to such an extent that he could be said to have failed in his moral duty to that child.”
Summary of principles
A useful summary of the principles as they apply to applications brought pursuant to section 117 of the 1965 Act was provided by Kearns J. in In the Estate of ABC, XC, YC and ZC v RT, KU and JL, as follows:
(a) The social policy underlying s.117 is primarily directed to protecting those children who are still of an age and situation in life where they might reasonably expect support from their parents, against the failure of parents who are unmindful of their duties in that area.
(b) What has to be determined is whether the testator, at the time of his death, owes any moral obligation to the children and if so, whether he has failed in that obligation.
(c) There is a high onus of proof placed on an applicant for relief under s.117, which requires the establishment of a positive failure in moral duty.
(d) Before a court can interfere, there must be clear circumstances and a positive failure in moral duty must be established.
(e) The duty created by s.117 is not absolute.
(f) The relationship of parent and child does not, itself and without regard to other circumstances, create a moral duty to leave anything by will to the child.
(g) Section 117 does not create an obligation to leave something to each child.
(h) The provision of an expensive education for a child may discharge the moral duty as may other gifts or settlements made during the lifetime of the testator.
(i) Financing a good education so as to give a child the best start in life possible and providing money, which, if properly managed, should afford a degree of financial security for the rest of one’s life, does amount to making ‘proper provision’.
(j) The duty under s.117 is not to make adequate provision but to provide proper provision in accordance with the testator’s means.
(k) A just parent must take into account not just his moral obligations to his children and to his wife, but all his moral obligations, e.g. to aged and infirm parents.
(l) In dealing with a s.117 application, the position of an applicant child is not to be taken in isolation. The court’s duty is to consider the entirety of the testator’s affairs and to decide upon the application in the overall context. In other words, while the moral claim of a child may require a testator to make a particular provision for him, the moral claims of others may require such provision to be reduced or omitted altogether.
(m) 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, he will ultimately become the owner of it, thereby causing him to shape his upbringing, training and life accordingly.
(n) Another example of special circumstances might be a child who had a long illness or an exceptional talent which it would be morally wrong not to foster.
(o) Special needs would also include physical or mental disability.
(p) Although the court has very wide powers both as to when to make provision for an applicant child and as to the nature of such provision, such powers must not be construed as giving the court a power to make a new will for the testator.
(q) The test to be applied is not which of the alternative courses open to the testator the court itself would have adopted if confronted with the same situation but, rather, whether the decision of the testator to opt for the course he did, of itself and without more, constituted a breach of moral duty to the plaintiff.
(r) The court must not disregard the fact that parents must be presumed to know their children better than anyone else.
The prescribed time for the bringing of an application under section 117 of the 1965 Act is six months from the first taking out of the grant of representation.
In the Matter of the Estate of F. Deceased, Ms. Justice Laffoy, concluded that the six-month limitation period in which to issue proceedings pursuant to section 117, only begins to run from the date of the extraction of a grant of probate or a grant of administration with the will annexed, rather than the date of a limited grant.
It is important to note that the statutory time period in which an application may be brought pursuant to section 117 of the 1965 Act cannot be extended as a result of the legal disability of age or unsoundness of mind.
Carroll J. in MPD v MD expressed the view that once the time limited by section 117(6) of the Succession Act 1965 had elapsed, the court has no jurisdiction to hear the action and they must be dismissed. In this instance, unlike the general practice of pleading the Statute of Limitations as part of any defence, my view is that an application should be made to the court seeking to have the statute-barred proceedings struck out.
Somewhat illogically and in stark contrast to the obligation of personal representatives to notify spouses and civil partners of their rights under the Act, neither the personal representatives nor the beneficiaries’ solicitor has a duty to inform the testator’s children (or their parents or guardians).
Indeed, in Rojack v Taylor and Buchalter the court held that if a solicitor administering an estate were to notify a child of the deceased of their rights under the Succession Act that could constitute negligence or breach of trust.
Therefore, it is essential that the solicitor advising an intended plaintiff either seek an undertaking from the estate’s solicitor that they will notify them once the grant issues or to carry out monthly searches in the Probate Office or the relevant District Probate Registry.
Strictly speaking the lodging of a caveat in section 117 proceedings is incorrect as a caveat prevents a grant of probate from issuing and a grant of probate is required in order for such proceedings to be heard. However, is it common practice for practitioners to use caveats as an early warning system as to when the grant is applied for. It is usual that the caveat is withdrawn and as a quid pro quo the intended plaintiff is notified once the grant issues.