Wednesday 26 July 2017

End of inheritance: changes to law means parents can cut children out of their wills

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Shane Phelan

Shane Phelan

Parents will no longer have a "moral duty" to leave an inheritance for their children under proposed changes to the law.

A Law Reform Commission report proposes the amendment of a law so it will simply state that a deceased parent has a duty to make "proper provision" for a child.

If the law is changed, children who are unhappy with how they are provided for in a parent's will can still bring a challenge in the courts.

However, it will be more difficult for them to argue that they have not been provided for by their parents.

Although court battles over inheritance are relatively rare, they can be fractious. "They can be very bitter and, if they go to court, massively expensive," said Sabine Walsh, president of the Mediators' Institute.

"I know of one case currently where there are potentially four or five sets of legal proceedings. If it goes to court there will be nothing left because it will all go to pay legal fees."

Under the proposals children aged over 18, or over 23 if in full-time education, would be considered to have already been properly provided for in the eyes of the law.

The commission's document signals an end to the notion that children are entitled to an inheritance. It said the law changes are being recommended to reflect the fact people are having fewer children and parents are living longer and need to fund their own later life health and care requirements.

This means they may be less likely to leave inheritances for their offspring in the way that children in the 20th Century may have expected.

Only three exceptions are provided for in the new recommendations. These are where the adult child has a particular financial need arising from their health or decision making capacity, where the estate contains an item of particular sentimental value to the adult child, or where the adult child has provided care and support for the deceased.

Failed

The recommendations arise out of a review of Section 117 of the 1965 Succession Act. This allows children who believe a parent failed in their "moral duty" to provide for them to apply to the courts for a cut of the estate or an increased portion.

This section of the Act has been successfully used in the past to increase a child's share in an inheritance, where they believed the parent had a "moral duty" to provide for them.

But the recommendations, if adopted, would have the potential to reduce the number of spurious challenges to wills.

Solicitor Richard Hammond, who chairs the Law Society's probate committee, said: "The existence of clearer parameters should reduce litigation where a child, though genuinely disappointed, has little basis for proceeding, thereby saving cost to all involved."

However, he also described the proposals as "a mixed bag".

"The proposed definition of need on the part of the claimant is quite narrow and has the potential to exclude genuine hardship cases.

"On the other hand the right to challenge would be extended to include where the adult child has provided care and support for the deceased, regardless of the need of that child.

"Therefore while moving away from a moral duty regime toward a proper provision regime the commission's proposals would both narrow and broaden the pool of potential applicants at the same time."

The commission has also recommended children be allowed to make a section 117 application where the parent dies without leaving a will. This is not possible under current law, under which the parent's estate is distributed in accordance with specific fixed shares.

Irish Independent

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