SECTION 117 CLAIMS
The Succession Act, 1965 introduced a procedure, known as a Section 117 Claim, which can be taken by a child or on behalf of a child, objecting to the terms of a parent’s will. The Act allows the Court to make alternative provision for a child where it is proven that the parent has “failed to make proper provision for the child in accordance with his means whether by will or otherwise”. The definition of a child now includes adopted and non-marital children. There is no legal requirement to make provision for step-children or foster children. Case Law in this area has established the criteria considered by the courts when reaching a decision on a Section 117 claim and they are:-
This is no easy route to be taken. The Courts are reluctant to intervene in the estate of someone who has gone to the trouble of making a will. The successful Claimant must prove that there has been a positive failure by the parent in their moral duty to provide for the child and that the child has a need which the will has not catered for.
There are limitations to this procedure as follows:-
In 2001 there was a High Court case of MSH Deceased whereby a Testator had died leaving his wife and 10 adult children. One of these children was incapacitated and the Will provided that a Trust was set up in that child’s favour. As a result of this Trust, the other nine children were not provided for in the Will. Several of the children brought Section 117 claims against the Estate on the basis that their father had failed in his moral duty to make provision for them. Evidence was given, in support of that claim, that Testator had not paid third level education for one of the objecting children. The court was of the opinion that those children bringing the claim had to be proof a special need giving rise to the father’s obligation, which said obligation was not then so observed. The Court found that the Applicants did not satisfy this test and as such the claim failed and the terms of the Will was upheld and reaffirmed.
The most recent decision of the High Court in relation to a Section 117 Claim against an estate was given by Justice Kearns on the 2nd of April 2003. The claim in this particular case (In the Estate of ABC Deceased, XC, YC, ZC –V- RT, KU & JL). The claim against the estate was on the basis that the Will established discretionary trust for the benefit of the Plaintiffs but the Plaintiff’s were also the Executors and beneficiaries under the Will and there was a conflict of interest. Having considered the facts, the Section 117 Claim failed and the High Court held that in such application the Court must consider the moral duty owed by the Testator towards his children as at his date of death and whether or not the Testator had failed in that duty.
The criteria used by the Court were as follows:
a) The duty under Section 117 is not to make adequate provision but to provide proper provision in accordance with the Testators means.
b) A just parent must take into account not just his moral obligations to his children and to his wife but all moral obligations, for example, to aged and infirmed parents.
c) Before a Court could intervene there must be clear circumstance and positive failure in the moral duty must be established.
Mr Justice Kearns went on to state that the Court must avoid the temptation to enter into the arena of adjudicating in a manner in which Executors discharge obligations in the administration of the Estate and how Trustees discharge their obligations to the beneficiaries of a Trust are not properly dealt with in a Section 117 claim forum.
As you can see from both of the above cases, the grounds for Section 117 claims can vary widely between one case and another. However, ultimately it appears that the Court is reluctant to interfere with the terms of a Testator’s Will in the absence of very clear evidence of the Testator’s failure for his children in his/her Will.
This article is not exhaustive in the area of Section 117 Claims but is merely indicative of the type of case law which exists at present. Legal advise must be obtained before embarking on any such claim against the Estate of a Testator.
Deirdre Wilson
