What if a Child is Unhappy With a Parent's Will? Is There Anything That Can be Done?

"When I was young, I thought that money was the most important thing in life; now that I am old, I know that it is " - Oscar Wilde.

This quote from our famous poet, playwright, and novelist, celebrated for his wit, aligns perfectly with today's blog post subject.

Unfortunately, it's common for a child of a deceased parent to be dissatisfied with the terms of that parent's Will. A disappointed child may challenge the Will under Section 117 of the Succession Act 1965. This section provides that a child of the deceased can claim that their parent failed in their moral duty to make adequate provision for them in the Will. The child can apply to court for a share of the estate, arguing that the parent did not sufficiently provide for them.

It's important to note that an application under Section 117 must be made within six months from the date of the Grant of Probate, so an unhappy child should act swiftly.

The court will evaluate whether the deceased parent indeed failed in their moral duty to provide for the child. This assessment considers the child's needs, the estate's size, and other beneficiaries' circumstances.

The court will take various factors into account, including:

- The amount left to the child in the Will.

- The financial position of the child.

- The relationship between the child and the deceased.

- The size of the estate and the needs of other beneficiaries.

The court has wide discretion in these matters and will make a decision based on the unique circumstances of each case. If the court determines that the deceased failed in their moral duty, it can order that provision be made for the child from the estate.

As an example, consider a High Court case heard in 2022 (G.S v M.B) by Justice Siobhán Stack, which involved the estate of T.N. and an application by her son, G.S. (The names of the parties are not disclosed in the written judgement due to the "in camera" rule, which applies in sensitive cases to protect the privacy and welfare of those involved).

G.S., son of the late T.N., brought a claim under section 117 of the Succession Act, 1965, seeking proper provision from his mother's estate. ​ G.S. was left nothing in his mother's Will. The deceased passed away on June 9th, 2015, leaving a will dated December 17th, 2004, which made various bequests, including her dwelling house and farm, to her nephew, M., and other more minor bequests to other nieces, nephews, and a friend.

At the time of her death, the gross value of her estate was €671,533, with a net value of €663,998, which had increased to €778,998 by the hearing date. ​ ​

G.S. was born in 1955, and his mother was unmarried at the time. ​ His father died in an accident before he was born. ​He believed he was born in a mother-and-baby home and was given to another family, Mr. and Mrs. S., to be raised. ​ There was no formal adoption. ​​ He had a complicated relationship with his mother, who did not provide for him during her lifetime. ​ He had suffered from mental health issues, including paranoid personality disorder and depression, which he attributed to his upbringing and lack of support from his mother. ​

​He was raised by Mr. and Mrs. S. in modest circumstances but had a happy and loving childhood. They resided in local authority housing, and Mr. and Mrs. S. were not well off. Mr S. served in the army before working for the local authority, and he also cut turf in his spare time to earn extra money. Despite these modest circumstances, he described his childhood as happy and loving. He felt valued and cared for by Mr. and Mrs. S., who also fostered two older girls. His upbringing was marked by financial constraints, but it was enriched by his foster parents' emotional warmth and support. He felt isolated and different due to his birth circumstances and the low social status of his foster parents. ​

He first met his mother at the age of 23 in a hotel. ​ They kept in touch by phone, but their relationship deteriorated over time. ​His mother offered to sell him ​ a site, which he could not afford and felt should have been a gift, leading to further strain. ​His mother did not show interest in her son's son and preferred to meet her son in larger towns rather than locally. ​

He felt significant distress and unhappiness due to the lack of acceptance and support from his mother. ​He was distressed by the need to provide DNA evidence after his mother's death to prove his relationship to his mother despite it being well-known in the family and community. ​During the court hearing, it was suggested that she might have been forced to give up him up due to familial and social pressures. ​Despite the lack of a close relationship, she ​ watched him​ play Gaelic football from a distance as a child, indicating some interest. ​

The relationship was characterised by emotional distance, a lack of support, and unresolved grievances, which contributed to his feelings of isolation and distress.

Overall, while G.S. and his wife had significant assets, their income was modest, and they had limited earning capacity. ​ They also have a young son to support. G.S. took early retirement in 2011 and, at the time of the hearing, had a pension of €313.97 per week. He and his wife own a home valued at €175,000 and a rental property worth €200,000. He had personal savings totalling €184,000 and an Irish Life policy valued at €200,000. His wife also has personal accounts with a total balance of €62,000.

Justice Stack determined that the deceased had failed in her moral obligation to make adequate provision for her son in her will, especially given that he was her only child and considering his modest income and financial needs. As a result, G.S. was ordered to receive a lump sum of €225,000 from the estate, charged against the agricultural lands.

Justice Stack stated, "The question is whether the deceased, having regard to the assets she had available to her and the circumstances and prospects of the plaintiff at the date of her death, has made proper provision for the plaintiff in her will. I do not believe that she has. I am of the view that the plaintiff has discharged the high onus that is undoubtedly on him to demonstrate a failure of moral duty on the part of the deceased"

She further stated, "Given the absence of any competing claim, and given the fact that, notwithstanding that she lived quite a frugal life herself, she was about to leave considerable assets in her will to a series of nieces and nephews, it is my view that she ought to have provided for the plaintiff in her will. The situation might be different if she had a special and warm relationship with one or other of the beneficiaries, but there is no evidence of this, nor is there any evidence that any of them had a moral claim on her or were financially dependent on her in any way. There will no doubt be many cases where one or more nieces, nephew, adult siblings, or other relations or friends, will themselves have enjoyed a relationship with the deceased which would give rise to a competing moral claim. However, on the evidence before me, this is not such a case."

Challenging a will under this section can be complex, and the outcome depends heavily on the individual circumstances of the case.