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Can children be left out of a Parent's Will?

Can a Will legally made by a Solicitor be overturned if children of the deceased are deliberately left out in favour of a niece. Megan

Can a Will legally made by a Solicitor be overturned if children of the deceased are deliberately left out in favour of a niece. Megan

 

Hi Megan,

If the Will is properly made as a legal document (properly witnessed, no undue influence etc) it cannot be overturned in the sense of being declared invalid but the total exclusion of a child or children to favour a niece might be open to question. In other words the gift or gifts could be challenged. On the programme last week we discussed Section 117 of the Succession Act 1965 which requires a parent to provide for a child or children “as a prudent and just parent should provide.”

Sometimes a parent will give an advancement to children during the parent’s lifetime (buy them a house etc) and this can be seen as justification for favouring other children or relatives at the expense of the child who received the earlier gift. That said however, the courts are becoming more likely to intervene in order to enforce the rights of children to a share in a parent’s estate. Incidentally “children” means offspring of any age. They don’t have to be under 18.

Any child left out of a Will in such circumstances should take immediate legal advice from a specialist lawyer who deals with Probate cases. There is a limitation period in which a claim for a fair and just share can be filed so time is of the essence.

Here is the full text of Sec117:

117.—(1) 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.

(2) 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.

(3) An order under this section shall not affect the legal right of a surviving spouse or, if the surviving spouse is the mother or father of the child, any devise or bequest to the spouse or any share to which the spouse is entitled on intestacy.

(4) Rules, of court shall provide for the conduct of proceedings under this section in a summary manner.

(5) The costs in the proceedings shall be at the discretion of the court.

(6) An order under this section shall not be made except on an application made within twelve months from the first taking out of representation of the deceased's estate.

The full Text of the Succession Act 1965 can be found at

http://www.irishstatutebook.ie/1965/en/act/pub/0027/index.html

 

 

The issues raised in the answer to this NewsTalk listener's question are dealt with in a general way as can only be the case on live radio. Before relying on the advice given in this answer, whether you heard the broadcast or are for the first time reading the issues here please do not rely on the broad advice given. For a detailed professional opinion please consult a qualified legal advisor and for further details read our disclaimer on the Home Page.

 

The issues raised in the answer to this NewsTalk listener's question are dealt with in a general way as can only be the case on live radio. Before relying on the advice given in this answer, whether you heard the broadcast or are for the first time reading the issues here please do not rely on the broad advice given. For a detailed professional opinion please consult a qualified legal advisor and for further details read our disclaimer on the Home Page.

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