The law should be changed so that the children of people who die without making a will would be entitled to go to court to claim they are being treated unfairly in terms of their inheritance, according to a new report.
Under the Succession Act 1965, people can go to court and challenge the will of a parent which they feel does not properly provide for them.
This should continue to be the case, but similar rights should be given to the children of parents who have died without making a will, according to a report from the Law Reform Commission.
Up to 1965, people could do what they wished with their estate, leaving it all to charity if they so wished, irrespective of the circumstances of their spouse or children.
The 1965 law changed this. It provided that where The law should be changed so that the children of people who die without making a will would be entitled to go to court to claim they are being treated unfairly in terms of their inheritance, according to a new report.
a will had been made, a spouse was entitled to at least one-half of the estate, or one-third if there were children.
While the children were not entitled to any defined share of the estate, they were entitled to go to court and claim they were not being properly provided for.
Entitled
The law also provided that, in cases where a person died without making a will (intestacy), the surviving spouse was entitled to two-thirds of the estate, or the whole estate if there were no children; and children were entitled to a fixed share of one-third between them, if there was a surviving spouse, or the whole estate between them, if there was no surviving spouse.
The commission is now recommending that the situation with intestacy should be capable of challenge in the courts in similar ways to the situation of the children of a parent who has made a will. This is because the fixed shares rule can result in injustice, it decided.
In discussing the change, the commission cited the example of a family where one child had worked in the family farm or family business, while the rest of the children did not.
If the parent had made a will excluding the child from inheritance, that person would be able to take a case to court.
However if the parent had died intestate, the child would not be able to take a case. Another situation cited is families in which one child had special needs.
Surviving spouse
The report recommends that in cases where children challenge the distribution of a parent who has died intestate, the court should ensure that the amount left to the surviving spouse, who is not the parent of the child or children making the application, should not be less than the amount he or she would be entitled to if the deceased had made a will.
The report, on section 117 of the 1965 Succession Act, recommends that the section be amended so that a reference to the “moral duty” of the parent to make proper provision for his or her child, is removed.
“The commission considers that 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,” the report says.
It says that for children over the age of 18, or 23 if still in education, it is appropriate to presume that a parent has already properly provided for them.
Exceptions to this presumption are where the applicant to the court has a particular financial need arising from a health or decision-making capacity difficulty, where the estate contains an item of sentimental value to the applicant, or where the applicant has provided care and support to the deceased.
