Ask a solicitor: I was left out of the will - what can I do?

My sisters were also given sites during his lifetime, and they built houses on them. I was not given anything in the will, which I am disappointed with. I emigrated when I finished school and only moved back in the last few years. 

While I spoke with my parents a few times a year, I never had a close relationship with them. However, since my mother died, I have rebuilt my relationship with my father and helped with his care as he got older. What are my options here legally?

Dear Reader,

It is worth noting that unlike a spouse or civil partner, children do not have an absolute right to inherit any part of their parent’s estate if the parent makes a Will. However, as the law currently stands, if a child considers that he or she has not been adequately provided for, he or she may make an application to the court to seek a declaration that the parent has “failed in his moral duty to make proper provision for the child in accordance with his means.”

This is known as a Section 117 application. If the court accepts that proper provision has not been made, the Court can Order that such provision is made from the deceased Estate as they think is just.

S.117 (1) of the 1965 Act provides as follows: “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.” 

Where a S.117 application is made any determination is reached by a two-stage process:

• The court must decide whether the testator has failed in his moral duty to make provision for a child; and 
• Only if so failed, the court will look to see what provision should be made for the child.

It is important to note that s. 117 applications only arise on a testate death (where there is a will) and where the dissatisfied child is a child of the testator. It is difficult to conclude what specific circumstances might contribute to the outcome of a verdict in favour of your Section 117 application, but the court will look at all the applicable facts. 

The legislation states: “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.”

It is important to note that any person who intends to bring a Section 117 application to the court against a parent’s estate should weigh up the pros and cons carefully in advance of bringing such an application, and applicants should always be aware that the costs of such an application are at the discretion of the court and an unsuccessful applicant is not necessarily entitled to have the costs of the application paid out of the estate of the deceased. In some cases, the court can refuse the applicant the costs of the claim.

Stephen Coppinger is a solicitor practising in Walsh & Partners, Solicitors and Commissioners for Oaths, 17, South Mall, Cork.  Walsh & Partners also specialises in personal injury claims, conveyancing, probate, and family law.

Email:  info@walshandpartners.ie 

Web: www.walshandpartners.ie

• Disclaimer: While every care is taken to ensure the accuracy of the information contained in this article, solicitor Stephen Coppinger does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.