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Thursday 18 October 2018

Do we have to leave our son anything in our will?

Our solicitor tackles this sensitive issue

(Stock picture)
(Stock picture)

Dear Deirdre,

this is a terribly sad situation that I’m about to detail to you and not something that I’m proud of in our family. But one of our sons, we have three, fell out with the entire family over a number of years and has virtually no contact with us anymore.

He was always trouble. Throughout his teenage years he was in trouble with the law a few times and we bailed him out, we insisted he go to college even though he didn’t want to but we wanted him and his other brothers to have a good education. He barely scraped through and moved abroad when he could to New York.

He’s been over there illegally for the past 15 years, in and out of work and while I sometimes send him money to ensure he’s ok, I know the rest of the family would not be happy if they knew about this.

He caused my husband and two other sons grief his entire life, picking fights physically and verbally with them and the house and once put one of his brothers in hospital when he beat him up. I don’t know why or how he turned out like this, as he got the same opportunities and upbringing as his two brothers.

He also caused great embarrassment for us as a family – at one point he stole from the Church. Luckily the priest was very understanding and didn’t press charges, but I know everyone in the parish knew about it.

His two brothers have been great sons to us. They never got into any trouble, except the few teenage skirmishes, have got on with life and come home regularly at weekends. They are both fundamentally estranged from their brother at this point and I’m not surprised.

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However, the final straw was when one of his brothers got cancer last year and was in and out of hospital for a few months. I told my son in the US about it and he said he wouldn’t come home for the funeral if he died – he even said he wouldn’t come home for mine or my husband’s funeral! I was shocked and very upset about it and I didn’t tell anyone else in the family at the time. After all myself and my husband did for him throughout his life that he has become so angry and bitter, I don’t know what to say.

In a roundabout way myself and my husband got to talking about our will while we were housebound with the snow. At the moment we are leaving the house, farm and money evenly between the three, but when I told him about the latest communication with our middle son, we wonder should we leave him anything?

I know one of our sons would like to have the farm and we were thinking of leaving the house and some land to one and the main part of the farm to the other son. We also have some money in the bank, around €50,000 and thought we could give this to the middle son. Are we obliged to leave him anything or can he contest the will?

Dear reader, thank you for your query. I am sorry to hear of the tension within your family. The issue of Wills can be sensitive for families, particularly where there is a fractured relationship with a family member.

Under the current law, a child is not entitled, as a right, to a specified share in their parents’ estate. You can dictate what your son will get therefore you are not obliged to leave him anything. However, you do have a ‘moral duty’ to provide for your child whether by Will or during your lifetime.

S. 117 of the Succession Act 1965 allows a child to make an application to the Court where they feel they have not been adequately provided for by their parent(s). Where the Court is of the view that, having regard to the parent’s means, a parent failed in his/her ‘moral duty’ to make proper provision for the child, the Court may order that such provision would be made for the child out of the estate. Therefore, if you do not leave something to your child in your Will, it is possible your middle son could bring this application.

The test for a S. 117 application is two-fold: firstly, your son would have to satisfy the Court that there was a positive failure in your ‘moral duty’ and secondly, that he had a need which you could have satisfied but did not.

The Court would take a number of factors into account in this regard, for example, how many children you had, their ages, their position in life at the date of your death, your means, the financial position of the child making the application and whether you already provided for that child while you were living. 

Each case is decided on its own merits and the court takes the view of a ‘prudent and just’ parent.

S. 117 applications such as this are only available to children of those parents who have made a Will. If a parent has not made a Will, then their child cannot take a S. 117 application. Any child who wishes to take a S. 117 application must do so within six months of the date a Grant of Probate is taken out in your Estate. A Grant of Probate is effectively a Court Order giving your Executors power to deal with your estate.

However, a 2017 Law Reform Commission report proposes to remove the ‘moral duty’ of parents to provide for their children in their Will so that instead a deceased parent will only have to make ’proper provision’ for their children.

If this amendment occurs, 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 they have not been provided for by their parents. Under the current proposals, children 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 only exceptions to this would be 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 provided care and support for their deceased parent.

Therefore to conclude, while your middle son does not have a right to a specified share in your estate, you do, under the current law, have a ‘moral duty’ to provide for him. If you leave nothing to your middle son in your Will, it is open to him to bring an application under S. 117 of the Succession Act.

You should consult with your solicitor and give him/her details of your assets together with the provisions you have already made for your middle son, e.g. third level education and the money you have been sending to New York, to get specific advices.

If you do not want to leave anything to your middle son in your Will, it would be prudent to set out in your Will exactly why this is so. This will not prevent your middle son from making an application but it could deter him from doing so.

Deirdre Flynn is from a farming background and practices as a Solicitor at Deirdre Flynn Solicitors, Cathedral View, Ardfert, Co. Kerry Tel: 066 7115695   Email: info@deirdreflynnsolicitors.ie

The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information provided, Deirdre Flynn does not accept responsibility for errors or omissions howsoever arising. You should seek legal advice in relation to your particular circumstances at the earliest possible time.

 


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