Do children have a right to an inheritance in Ireland?

Each case is decided on its own merits and the court examines the situation from the point of view of a “prudent and just” parent, writes rural solicitor Karen Walsh.

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Dear Karen,

Do children have an automatic right to inherit? Am I to provide a certain amount of inheritance in my Will to my children?

Dear Reader,

Unlike a spouse or civil partner, children have no automatic rights to inherit any part of their parents’ estate provided that the parent makes a Will. However, if the child considers that he or she has not been adequately provided for, he or she can make an application to Court to seek a declaration that the parent has “failed in his moral duty to make proper provision for the child in accordance with his means”.

Each case is decided on its own merits and the court examines the situation from the point of view of a “prudent and just” parent. The case of McDonald V Norris concerned an acrimonious relationship between a father and son.

The applicant, who was the son of the deceased, had been taken out of school at the age of 14 and put to work on the family farm due to his father being unable to work as a result of injury sustained in an accident.

The applicant received no remuneration for his work and was eventually ordered to move out the farm and to be married. The father had made a Will in which he gave his other son some of the lands and had during his lifetime sold another section of land.

When his father died, the applicant, being the son who had worked on the farm for many years, brought an application to the court seeking a declaration that the deceased had failed to fulfil his moral duty to make adequate provision for him under the Will.

Th court held that the son was entitled to the remainder of the farm on the basis that his father deprived his son of an education and the chance of an independent career.

In the case of “re LB”, the applicant was 40 years of age, and he claimed that his mother had failed in her moral duty to provide for him. Under her Will, she gave most of her vast estate to charity.

The son had a history of drug addiction and was separated from his wife, was unemployed and was an alcoholic at the time of the mother’s death. The court held that she did not fail in her moral duty to him.

There is a relatively high onus of proof on the child applicant in such cases. The child must show a positive failure in the moral duty on the part of the parent.

Applicants should always be aware that the costs of such an application are at the discretion of the court, and also a successful applicant is not necessarily entitled to the costs of the application being paid out of the estate of the deceased. In some cases, the court can refuse the applicant the costs of the claim.

The time limit within which a child must make such an application is limited to six months from the date of the first taking out of the grant of representation, which is widely acknowledged as being the date the grant of probate issues in the estate of the deceased.

Such applications should be taken with caution and to the fact that the court has discretion to award costs against the applicant should the claim not be successful.

Karen Walsh, from a farming background, is a solicitor practising at Walsh & Partners Solicitors, 17 South Mall, Cork, and 88 Main Street, Midleton, Co Cork, and also the author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate.

Email: info@walshandpartners.ie

Web: www.walshandpartners.ie

While every effort is taken to ensure the accuracy of the information contained in this article, Karen Walsh does not accept responsibility for errors or omissions howsoever arising. Readers should seek legal advice in relation to their particular circumstances at the earliest opportunity.

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