The last thing I want to do is fall out with my parents, but I feel like I’m being refused my inheritance! It’s 2018…. can they really treat me like this?
Thank you for your query. I am sorry to hear about the tension within your family at what should be a time of celebration.
I note you say it has been openly discussed that your brother will get the farm while you and your two sisters would all get a site. I know both of your sisters have already received their site already and you have picked out the site you would like to build on, and your family are aware of this.
You say that you feel you are being refused your inheritance and you are wondering if your parents can treat you like this. As it stands, I assume the entire farm including the site upon which you would like to build, are still in your parent’s names, i.e. they still own the land.
It is therefore their property to do with as they wish and there is no obligation on them to transfer this particular site to you while they are still living, or indeed to leave this site to you in their will.
Inheritance is the term used when you obtain something from another after that person has passed way. This is distinct from a gift which occurs while the person giving the gift is still living. Under the current law, a child is not entitled as a right to a share in their parent’s estate. Therefore, your parents can dictate what you will get and are not obliged to leave you anything.
However, they do have a ‘moral duty’ to provide for you whether by Will or during their lifetime. If your parents make a Will and do not leave this site to you in that Will or indeed not leave you anything, it is open to you to make an application to the court under section 117 of the Succession Act 1965 where you feel you have not been adequately provided for by your parents.
Where the court is of the view that having regard to your parents’ means, that they failed in their moral duty to make proper provision for you, the court may order that such provision will be made for you out of the estate. The test for a section 117 application is two-fold: firstly, you would have to satisfy the court that there was a positive failure in your parents’ moral duty and secondly, that you had a need that could have been satisfied but was not.
There is a very high onus of proof on an applicant under section 117 and the court will take a number of factors into account in determining such an application, for example, how many children were in the family, their ages, their position in life at the time of the parent’s death, the parent’s means, the financial position of you and whether you have already been provided for while your parents were living.
A 2017 Law Reform Commission report proposes to remove the moral duty of parents to provide for children in their Will, so instead a deceased parent will only have to provide 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 will be considered to have already been properly provided for in the eyes of the law.
It does not appear from your query that you would be entitled to an alternative course of action such as promissory estoppel. Promissory estoppel is essentially a claim you could make if you could prove that you were given a clear promise that you will be given this site; and secondly that you relied upon that promise and it was reasonable for you to rely upon that promise; and thirdly that you acted to your detriment in reliance of that promise.
It appears from your query that no promise was made to you to give you this particular site at any particular time and it also appears that you are still working and living in Dublin and therefore you have not acted to your detriment by giving up your job.
To conclude, unfortunately your parents are not obliged to transfer this site to you nor are they obliged to leave this site to you in their Will.
It would be prudent for you to speak with them in relation to this matter and if that is not possible, perhaps the services of a mediator could be engaged to try and resolve the current family conflict. It is in everyone’s interests if you could sit down with your parents and discuss this issue as it would save a great deal of stress and worry for all parties concerned.
Deirdre Flynn is from a farming background and practices as a solicitor at Deirdre Flynn solicitors, 4 Ivy Terrace, Tralee, Co. Kerry. Tel: 066 7115695. Email: firstname.lastname@example.org
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.