Rights of Children to inherit from Parents estate

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Horatio

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A friend's Dad has been advised by his solicitor that the Father cannot exclude one of his children from inheriting part of his estate. The question was posed to the solicitor in the context of Fairdeal provisions for a child that is in care. The fear being that any inheritance would be gobbled up by the fairdeal scheme.

The Solicitor in essence explained that he cannot exclude the child from benefitting from his will. Doesn't sound right to me but I'd appreciate your thoughts. My understanding is that children do not have absolute rights to an inheritance unlike a Spouse.

Thanks all.
H.
 
Would it be anything to do with this?

Inheritance law – the moral duty of parents to provide for their children.
As regards inheritance rights for children, there is no automatic right for a person to receive anything in their parent’s will. However, S117 of the Succession Act speaks about the “moral duty” of parents to provide for their children. If a court thinks that a parent has not made “proper provision” for their child then some money may be given to that child from the deceased’s assets. There are strict time limits for this type of case and you should speak to us if you think your parent has not made proper provision for you or that their will was unfair and you want to claim inheritance. ......

....... With regard to children in wills, the court can decide that a parent has not made “proper provision” for their child as seen above. “Proper provision” has been described as a duty to house, clothe, maintain, feed and educate the child, ensure medical, dental and chemists’ bills are paid for until the child finishes education and provide “some provision by way of advancement for them for life”. In essence your parents should help set you up in the world as much as they are able to.

Children’s Inheritance | Inheritance disputes - PJF Solicitors, Ireland | Patrick J Farrell, Newbridge, Kildare

pjf.ie pjf.ie
 
Thanks @Early Riser , the above section reads like it is for the context of Minors as opposed to Adult children but this could be what the Solicitor had in mind during his explanation.
 
It doesn't mention age.
A "child" could possibly be 80+ in a situation where the parent is a centenarian.
 
Correct but it does mention finishing education so I read the spirit of this as ending at or around 23-25 years at the oldest, generally speaking, and younger if the child completes education earlier.
 
Horatio said:
Thanks @Early Riser , the above section reads like it is for the context of Minors as opposed to Adult children but this could be what the Solicitor had in mind during his explanation.
Click to expand...

It doesn't say "minor child". I am fairly sure it is "child" as in offspring:

"The following is an example of a successful claim in 2007 in the courts where a child brought a case arguing that the inheritance he received from his parent was not fair. Anthony worked on his father’s farm practically all his life and was paid a low salary for this work. The idea was that his father would work up enough money to buy each of his sons a farm, but this didn’t work out in the end. When he got married, Anthony’s father let him live in a house on some of his lands. The house was in bad repair and Anthony put a lot of work into refurbishing it. Some years later he stopped taking a wage from his father and farmed one of the family farms instead for income (we will call this farm Brownacre). He also helped out on another of his father’s farms (we will call this farm Blackacre). When his father died, he left the house that Anthony lived in and the Blackacre farm to another one of his sons, Conor. Before he died he had divided the Brownacre farm between Anthony, Conor and another son Barry and they sold it and split the proceeds.

The result for Anthony was that he had no home to live in and no lands to farm for income, after over twenty years farming for his father. He had a wife and child and had relied on his father’s land for income all his life. He made a claim arguing that his father had failed in his moral duty to make proper provision for him. Even though Anthony had been left things in the will (some money and some farming equipment) and given gifts during his lifetime (a third of the Brownacre farm and being allowed live in the house), the Court agreed that the father should have made better provision for him. Instead of the gift of £40,000 that Anthony received in the will, the Court ordered that he receive €750,000 instead."
httdo/wilps://pjf.ie/what-we-ls-probate/inheritance-disputes/childrens-inheritance/
 
Or here:

"Section 117(1) of the Succession Act 1965:
Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by will or otherwise, the court may order that such provision be made for the child out of the estate as the court thinks just”

It should be noted that “child” includes an adult child. It also includes a child born outside marriage and a child adopted by a testator."

Succession Rights For Children

Information on the succession rights of children in Ireland
www.probate-ireland.com www.probate-ireland.com
 
Horatio said:
A friend's Dad has been advised by his solicitor that the Father cannot exclude one of his children from inheriting part of his estate. The question was posed to the solicitor in the context of Fairdeal provisions for a child that is in care. The fear being that any inheritance would be gobbled up by the fairdeal scheme.

The Solicitor in essence explained that he cannot exclude the child from benefitting from his will. Doesn't sound right to me but I'd appreciate your thoughts. My understanding is that children do not have absolute rights to an inheritance unlike a Spouse.

Thanks all.
H.
Click to expand...
If the child is in care then the parents would still have a duty of care to that child. Different if the child is financially independent from the parents.
 
A child has no automatic right of inheritance, subject to the ‘proper provision’ rules.

But this case is coloured by the fact that the child is in care.

What the solicitor says sounds right to me.
 
Thanks Folks for all your thoughts and research. I'll pass on these nuggets.

Thank you.
 
In the case of an severely incapacitated "child" (minor or adult), who would initiate the case on the validity of a Will on the grounds of lack of "proper provision"?
In cases of "proper provision" I have seen reported it is the "child" who has taken the challenge to the Will to Court, but this depends on capacity.
What if the "child" is severely mentally impaired?
 
losttheplot said:
If the child is in care then the parents would still have a duty of care to that child. Different if the child is financially independent from the parents.
Click to expand...
ok, I did some follow up & the adult child is in fact financially idependent of the parents. Is this material?
 
If you simply exclude a child (adult child) from a Will, you should say why you are excluding them (eg wealthy in their own right, drug addiction etc). That will limit their ability to claim under S117 of the Beneficaries Act that you "haven't make reasonable provision for them".
But certainly get legal advice in such a situation.
 
DeeKie said:
You can exclude a child from a will. Many do. However the child might challenge the will.
Click to expand...
Yes, but how does a child (adult child) who lacks mental capacity challenge the will on the grounds, say, of "moral duty" and "proper provision"?
I wonder if there are any cases? Who initiates it and instructs lawyers?
 
If the adult is incapacitated then I suppose are they a ward of court? Or do they have someone as legal guardian? They’d be the people to take action
 
DeeKie said:
If the adult is incapacitated then I suppose are they a ward of court? Or do they have someone as legal guardian? They’d be the people to take action
Click to expand...
Very few incapacitated adults are wards of court - including adult who are severely intellectually/mentally incapacitated. And few have legal guardians. They have next of kin who may advocate for them. But if parents are dead, and a will excludes the incapacitated child from any inheritance, it is unclear who would be prepared and able (or even aware of the will details) to bring a case on their behalf. Perhaps, the recent commencement of the Assisted Decision Making Act ( https://www.courts.ie/news/new-deci...e-assisted-decision-making-capacity-act-comes ) may eventually bring some clarity to this but I am not sure how that might work.
 
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