Children and Parents Wills – Children’s Rights Under The Succession Act 1965 – Possible future changes to law
Inheritance is not always a given, many people expect that because the deceased is their parent, partner, spouse, brother, sister etc. that they are entitled to inherit from them when they pass away. This is especially true in the case of children, who expect to inherit from their parents when they pass away. This is not always the case. In some cases, a parent may decide to leave a child out of their will leaving the child with no inheritance. This is where S117 of The Succession Act 1965 comes into play
What is S117 of The Succession Act 1965?
Up to 1965 a person could do what they pleased with their estate after their death, regardless of their spouse or children’s circumstances and could do this by making a will. In 1965, this law changed and s117 of the Succession Act 1965 was introduced. Section 117 allows a child apply to court to challenge the will of their parent and claim that the parent has not provided for them under their will or otherwise in accordance with the parent’s moral obligation to do so in light of the parents means. Currently, an application to the court can only be made can only be made in cases where the parent has made a will.
Under s117 of the Succession Act 1965, in order for the child to successfully contest their parent’s will, they must establish a need for provision to be made for them. When making a decision on such cases, the court will take account of the full circumstances of the child and parent.
Children’s rights to inherit where a parent has died without a will
S117 of the Succession Act 1965 states that where a person dies without a will (referred to as having died intestate) the surviving spouse would be entitled to two-thirds of the estate (or the entire estate if there were no children) and any surviving children would be entitled to a fixed one-third of the estate equally between them (or the entire estate if there was no surviving spouse).
Suggested Changes to the Succession Act 1965 for children whose parents have made a will.
Recently the Law Reforms Commission (LRC) released a report which outlined recommendations for change in the area of s117 of the Succession Act 1965. These recommendations have no force of law at the moment. They are recommendations regarding a future possible change in the law. Thus, s117 in its current state continues to apply.
Some suggestions within this report have become the centre of controversy and scrutiny as they suggest that children can now be cut out of parents wills and may make it more difficult for a child to challenge a parent’s will.
Some of the controversial recommended changes are as follows:
Moral Duty vs Proper provision
The LRC have recommended a change in the applicable s. 117 test from the parent fulfilling their moral duty to to the test of whether the parent has made proper provision for their child. They recommend that in cases where a child challenges a parents’ will under s. 117, there would be a presumption that if the once a child is over 18 (or over 23, if in full time education) that it would be seen that the parent has made proper provision for the child.
This presumption can only be overcome if the child can prove that:
1. They have a particular financial need due to their health or decision making capacity
2. The estate contains an object of particular sentimental value to them
3. They have missed employment opportunities due to providing care for the parent.
How would this recommendation affect a child’s ability to challenge a parent’s will?
Since the Succession Act was brought into effect in 1965 there have been many cases under s117 of the Act which allowed the courts to determine a case by reviewing factors such as whether the parent provided an education to the child, for example. This recommended change of proper provision could have a great impact on a person’s ability to challenge their parents will under s. 117 if they are over 18 or over 23 (in full time education), unless they can prove point 1, 2, or 3 above.
Does this mean that parents can now cut children out of their wills?
Under the existing s117 there is no obligation for a parent to leave a particular share to a child. S117 merely gives a child the entitlement to apply to the court for provision to be made for them in the event that they can show that their parent failed in their moral obligation to provide for them, in accordance with their means, and that the child had a need for provision to be made.
The reality is that the uncertainty surrounding the existing s117 results in parents being fearful to leave children out of their will as they fear litigation will follow and the costs will be paid from their estate and reduce the amount left in their estate under their will for their chosen beneficiaries.
Is there a loop hole?
In summary, the law has not changed, but if these recommendations come into effect, it has been suggested in the media that there may be a loop hole in that children could claim a farm or large asset is an object of sentimental value.
It is simply too early to comment on this as these are recommendations only and essentially the law would have to be in place and interpreted by the court with the assistance of the facts of a case before them.
Suggested changes to account for children whose parents die without a will
At present a child cannot bring a case to court to contest what they have inherited if their parent died without a will. It has been suggested that a provision should be made so that in cases where a parent dies without a will that their child can contest the intestate distribution of their estate after their death. The reasoning behind this is because fixed share inheritance could be deemed unjust by the surviving children.
For example, if a child 1 has cared for, lived with and run the family business for the parent, while child 2 has no contact or communication with the parent or family, it may be seen to be unfair by child 1 that child 2 should inherit the same as them. This recommended change would give child 1 an avenue to contest the fixed share inheritance.
What happens next?
It will be interesting to observe whether the recommendations are adopted in any proposed change of law. Indeed, some have argued that the grounds 1, 2 and 3 above are too narrow. Any change will need to balance the interests of parents and their right to dispose of their estate as they wish as against the rights of children to be provided for by their parents.