Saturday 20 January 2018

Ms Justice Carmel Stewart: Need, not entitlement, is the priority as parents are now living longer

Where there is a will, the deceased parent is allowed to decide what to leave to his or her children, whether under 18 or over 18, subject to the ability to bring a claim under section 117. Stock Image
Where there is a will, the deceased parent is allowed to decide what to leave to his or her children, whether under 18 or over 18, subject to the ability to bring a claim under section 117. Stock Image

Ms Justice Carmel Stewart

The report we are publishing today examines section 117 of the Succession Act 1965. Section 117 provides that a child, including an adult child, of a deceased parent who has made a will can apply to court and claim that the parent failed in his or her "moral duty to make proper provision for the child".

If the court agrees that the parent failed to comply with the duty to make proper provision for the child, it can make an order that adjusts the amount left to the child in the will and order that a different amount that the court thinks is proper should be made for the child out of the parent's estate.

Section 117 has to be seen against the general background of the Succession Act 1965, which specifies minimum "fixed shares" for spouses and children - but only where there is no will (called intestacy).

Where a will has been made, the Oireachtas decided in 1965 that only spouses should be entitled to a minimum fixed share (two-thirds of the estate if there are no children, one-third if there are children), which would override the will if it left the spouse less than these minimum shares.

Where there is a will, the deceased parent is allowed to decide what to leave to his or her children, whether under 18 or over 18, subject to the ability to bring a claim under section 117.

The commission's report recommends that, in general terms, section 117 continues to be a valid approach, because it presumes that parents are in the best position to decide how much, if anything, to leave their children, subject to the ability to question whether proper provision has been made.

The commission considers, however, that section 117 should be amended especially where it applies to adult children, so that its focus would be firmly on a needs-based approach. The commission therefore proposes that section 117 should specify that a parent is presumed to have made proper provision for an adult child, subject to three exceptions. The first is in the case of an adult child whose health needs or capacity had not been properly provided for in the parent's will. The second is an adult child who had given up other opportunities in order to care for the parent in the parent's last years. The third is where the adult child shows that the parent left some memento that is of sentimental value.

The commission's report also recommends that section 117 should be amended by the removal of references to "moral duty" to simply provide that a deceased parent has a duty to make "proper provision" for a child. The phrase "moral duty" may unduly emphasise an expectation or entitlement to inherit, rather than an appropriate focus on the needs of a child, including an adult child.

Under the current law, where a parent dies without making a will, the estate is distributed in accordance with specific fixed shares in the Succession Act 1965. The courts have no power at present to vary these shares, even in cases of particular hardship, and under the current law an application under section 117 is not possible.

In 1965 the Oireachtas decided not to extend section 117 to include intestacy because it might give rise to additional litigation. The commission notes, however, that in other countries where such applications are available, there has been no increase in such claims.

The commission also considers that, in any event, it is preferable to allow for an application under section 117 in cases where injustice might otherwise arise; and so the report recommends that section 117 should be extended to intestacy cases.

This proposed, refocused section 117 is also intended to take account of important demographic changes since the 1960s. These have affected what is called the "generational contract" that operated in the 20th century, under which the adult generation first cared for young people, then the young people grew up and they cared for their older parents. Since the 1960s, a number of related changes have occurred.

First, parents are having fewer children, and therefore there are fewer of them to care for the parents in later life. Secondly, the parents are living longer, so that they have a longer time period, potentially, to fund their own later life, notably their health and care requirements. This also means that they may be less likely to leave inheritances for their children in the way that children in the 20th century may have expected.

The leading English gerontologist Professor Sarah Harper has commented that we may currently be moving into an "adapted generational contract", which means that older people will have more responsibility for themselves than in the past.

Succession law therefore needs to take into account that parents will usually have provided for their children during the parents' lifetime and that, because the parents will need to fund their own care for longer, the expectation of inheritance may be less common than in the past.

Ms Justice Carmel Stewart, Commissioner, Law Reform Commission

Irish Independent

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